Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 4 contracts
Sources: Purchase Agreement (Istar Financial Inc), Purchase Agreement (Istar Financial Inc), Purchase Agreement (Istar Financial Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Representative on behalf of the several Initial Purchasers to purchase and pay for the Offered Notes shall, on the Closing Date will be subjectsubject to the accuracy, in the Initial Purchasers’ sole discretionall material respects, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Dateherein, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofperformance, to the performance in all material respects, by the Company of its covenants and agreements obligations hereunder and to the following additional conditionsconditions precedent:
(a) On the Closing DateThe Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Commercial Loans shall have been delivered to the Trustee pursuant to the Sale and Servicing Agreement.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Companycertificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that:
, to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such counsel certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has no reason complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinionA) the Final MemorandumTime of Sale Information, as of its date or the date Time of such opinionSale, included or includes contains any untrue statement of a material fact or omitted omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or any Additional Offering Document contained or contains an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iic) The Class A-l Notes and the Company and Class A-2 Notes shall each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized rated no less than “Aaa” by ▇▇▇▇▇’▇, “AAA” by S&P, and are validly existing as corporations in good standing under “AAA” by Fitch, the laws of their Class B Notes shall have been rated no less than “Aa2” by ▇▇▇▇▇’▇, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by ▇▇▇▇▇’▇, “A” by S&P and “A” by Fitch, the Class D Notes shall have been rated no less than “Baa2” by ▇▇▇▇▇’▇, “BBB” by S&P and “BBB” by Fitch and the Class E Notes shall have been rated no less than “Baa3” by ▇▇▇▇▇’▇, “BBB-” by S&P and “BBB-” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the failure to be so qualified would amount to a material liability or disability to rating of the Company and its subsidiaries, taken as a whole; Offered Notes have been placed under review.
(d) On the Company and each date of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the Company pursuant date of delivery thereof, in form and substance satisfactory to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation Representative on behalf of the other transactions herein contemplated do not (x) require the consentInitial Purchasers, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum.
(xiie) commencing with Initial Purchasers shall have received an opinion, dated the Company’s taxable year ended December 31Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes in- house counsel to the Initial Purchasers as contemplated by this Agreement Trustee, in form and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the .
(f) The Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers shall have received legal opinions of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇Winston & ▇▇▇▇▇▇ LLP. An opinion , counsel to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for (ii) with respect to certain “true sale” and “non-consolidation” issues in form and substance satisfactory to the Initial Purchasers covering matters reasonably requested by Representative on behalf of the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(bg) The Initial Purchasers shall have received a legal an opinion from of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial Purchasers, dated Company and the Closing DateTrust Depositor, with respect to certain legal matters relating “perfection issues” in form and substance satisfactory to this Agreement and such other related matters as the Representative on behalf of the Initial Purchasers.
(h) The Initial Purchasers may reasonably require. In rendering such opinion, shall have received opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received LLP, counsel to the Owner Trustee and may rely upon such certificates the Trust, with respect to certain trust matters and other documents with respect to certain “perfection issues,” in each case in form and information as it may reasonably request substance satisfactory to pass upon such mattersthe Representative on behalf of the Initial Purchasers.
(ci) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP the Trustee a letter certificate signed by one or letters datedmore duly authorized officers of the Trustee, respectively, the date hereof and dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchaserscustomary form.
(dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form.
(k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and its counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinionsfurther information, certificates, letters, certificates and documents in such quantities as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel.
(1) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.
Appears in 2 contracts
Sources: Purchase Agreement (NewStar Financial, Inc.), Purchase Agreement (NewStar Financial, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation of ------------------------------------------------- the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) All of the conditions contained in the Credit Agreement to be fulfilled or complied with prior to any borrowing under such agreement (other than the transactions contemplated by this Agreement) shall have been complied with; and the financing for the Recapitalization (other than the offering and sale of the Notes as set forth herein and the application of the proceeds therefrom) shall have been consummated or shall be consummated simultaneously herewith.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇▇▇ Chance US LLP& ▇▇▇▇▇, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope substance satisfactory to counsel for the Initial PurchasersPurchaser substantially in the form set forth on Exhibit A hereto. In rendering such opinion, upon the opinion of ▇▇▇▇▇▇▇▇ LLP. An opinion of ▇▇& ▇▇▇▇▇ LLP shall be delivered have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the Closing Date, the Initial Purchaser shall have received the opinion, in form and substance satisfactory to the Initial Purchasers Purchaser, dated as of the Closing Date and counsel for addressed to the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions Purchaser, of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel for the Initial Purchasers, dated the Closing DatePurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(cd) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP a letter or the Independent Accountants comfort letters dated, respectively, dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser.
(de) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company contained in this Agreement are shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Final Memorandum, there shall have been no event or development that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The Recapitalization and the sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct of the business and operations of the Company or any of the Subsidiaries shall not have been interfered with by strike, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of the Company, any of the Subsidiaries shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(h) The Initial Purchaser shall have received a certificate of the Company, dated the Closing Date, signed by its Chairman of the Board, President or any Senior Vice President and the Chief Financial Officer (in their respective capacities as such), to the effect that, to the best of their knowledge and belief:
(i) The representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and;
(ii) subsequent to At the respective dates as Closing Date, since the date hereof or since the date of which information is given the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement theretothereto after the date hereof), neither no event or events have occurred, no information has become known nor does any condition exist that, individually or in the Company nor any aggregate, would have a Material Adverse Effect;
(iii) The Recapitalization and the sale of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has the Notes hereunder have not been enjoined (temporarily or permanently); and
(iv) There have been no material amendments, alterations, modifications or waivers of any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations provisions of the Company or any Recapitalization Agreement and related documents since the date of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this thereof by the parties thereto; the Company has complied in all material respects with all agreements and covenants in the Recapitalization Agreement and related documents and performed all conditions specified therein required to be complied with or performed by them at or prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(gi) On the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(hj) The Initial Purchaser shall have received from the Company a true and correct executed copy of the Credit Agreement, dated on or about the Closing Date, and there shall have been no material amendments, alterations, modifications or waivers of any provisions of the Credit Agreement, and there exists as of the Closing Date (after giving effect to the transactions contemplated by this Agreement and the application of the proceeds received by the Company from the sale of the Notes) no condition that would constitute a Default or an Event of Default (each as defined in the Credit Agreement) under the Credit Agreement.
(k) The Initial Purchaser shall have received from the Company a true and correct executed copy of the Recapitalization Agreement, and there shall have been no material amendments, alterations, modifications or waivers of any provisions of the Recapitalization Agreement since the date of this Agreement; all conditions to effect the Acquisition set forth in the Recapitalization Agreement shall have been satisfied.
(l) On the Closing Date, the Initial Purchaser shall have received an opinion from ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., in a form reasonably satisfactory to the Initial Purchaser, regarding the solvency of the Company immediately after the consummation of the Recapitalization and the transactions contemplated thereby. On or before the Closing Date, the Initial Purchasers Purchaser and counsel for the Initial Purchasers Purchaser shall have received such further documents, opinions, certificates, documents letters and schedules or other information instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they may shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, letters and documents letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are rea- sonably satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser. The Company shall furnish to the Initial Purchasers Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and documents instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 2 contracts
Sources: Purchase Agreement (Therma Wave Inc), Purchase Agreement (Therma Wave Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the each Initial Purchasers Purchaser to purchase and pay for the Notes shall, to be subjectpurchased by it on the Closing Date hereunder are subject to the fulfillment, in the such Initial Purchasers’ Purchaser's sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for those purposes shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. No order suspending the sale of the Notes in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, threatened.
(b) At the Closing Date, the Reorganization Transactions and the Related Transactions shall have been consummated; and the Company shall have provided to the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, or counsel for the Company, dated the Closing Date, Initial Purchasers copies of all closing documents delivered to the effect that:parties to the Reorganization Transactions and the Related Transactions.
(c) Subsequent to the date hereof, (i) such counsel has no reason to believe that except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (other than financial or other), business, prospects, properties, assets, net worth or results of operations of the financial statements and other financial information contained thereinCompany, taken as to which such counsel need express no opiniona whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Notes, or (ii) the Final Memorandum, as of its date or the date of such opinion, included or includes Offering Memorandum shall not contain any untrue statement of a material fact or omitted or omits omit to state any 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.
(ii) , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where correct any such counsel has been advised that the failure to be so qualified would amount to a material liability misstatement or disability to the Company and its subsidiariesomission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers’ representations in Section 8 and those , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateNotes.
(bd) The Initial Purchasers shall have received a legal on the Closing Date an opinion from of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, substantially in the form of EXHIBIT A hereto.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, dated the Closing DateDate and addressed to the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinionrequest.
(f) The Initial Purchasers shall have received a "cold comfort" letter addressed to the Initial Purchasers, and dated the date hereof and the Closing Date, from each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request , P.C., substantially to pass upon such mattersthe effect set forth in EXHIBIT B hereto.
(ci) The There shall not have been any material change in the capital stock of the Company or any Subsidiary nor any material increase in the short-term or long-term debt of the Company or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole; (iii) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; and (iv) the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter certificate, dated the Closing Date and signed by the Chairman and Chief Executive Officer and the chief accounting officer of the Company (or letters datedsuch other officers as are reasonably acceptable to the Initial Purchasers), respectively, to the date hereof effect set forth in this Section 7(g) and in Section 7(h) hereof.
(h) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of their respective agreements herein contained and required to be performed or complied with by them hereunder at or prior to the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(di) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any class of Notes of the Company (including the Notes), or (ii) it is reviewing its ratings assigned to any class of Notes of the Company (including the Notes) with a view to possible downgrading, with negative implications or direction not determined.
(j) The Notes shall have been approved for trading on PORTAL.
(k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer such further certificates and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct customary closing documents as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Companyrequested. All such opinions, certificates, letters and other documents delivered pursuant to this Agreement will comply be in compliance with the provisions hereof only if they are reasonably satisfactory in all material respects form and substance to the Initial Purchasers Purchasers. Any certificate or document signed by any officer of the Company and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers. The , shall be deemed a representation and warranty by the Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as to the Initial Purchasers shall reasonably requeststatements made therein.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes Securities shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇ Chance US ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the CompanyIssuers, dated in form and substance reasonably satisfactory to counsel for the Closing DateInitial Purchasers, substantially to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light Each of the circumstances under which they were made, not misleading.
(ii) the Company Issuers and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are Guarantors is validly existing as corporations and in good standing under the laws of their respective jurisdictions the State of incorporation Delaware and are duly qualified to transact business as foreign corporations and are in good standing under has the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material requisite corporate or limited liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full company power and authority to own, lease and operate their respective own its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum. Relying solely on good standing certificates issued by the secretaries of state, each Issuer and Guarantor is duly qualified to do business as a foreign corporation or limited liability company, as the Company has corporate power case may be, in good standing in the jurisdictions set forth opposite their respective names on a schedule annexed to enter into this Agreementsuch opinion as of the dates set forth on such schedule.
(ii) Based solely on such counsel's review of the membership interest transfer ledger of the Parent, the Registration Rights Agreement Parent has the issued and outstanding capitalization set forth in the Indenture first paragraph under the heading "Security Ownership of Certain Beneficial Owners and to carry out all Management" in the terms and provisions hereof and thereof and of the Notes to be carried out by itFinal Memorandum; all of the issued and outstanding shares of capital stock of each equity interests of the Company’s significant subsidiariesIssuers and the Guarantors reflected in the stock or membership interest transfer ledgers of the Issuers and the Guarantors have been validly issued, and are fully paid and nonassessable and, to the knowledge of such counsel, were not issued in violation of any contractual preemptive or similar rights; except as otherwise disclosed in the Final Memorandum, based solely on such counsel's review of the membership interest transfer ledger or stock transfer ledger of the Issuers and the Subsidiary Guarantors, as applicable, all of the outstanding equity interests of the Issuers and the Subsidiary Guarantors are owned of record, directly or indirectly, by the Parent, and, to such counsel's knowledge, other than a pledge of the outstanding equity interests of the Issuers and the Guarantors to the lenders under the Amendment to the Credit Agreement, free and clear of all perfected security interests.
(iii) Except as set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counselcounsel (A) no options, warrants or other rights to purchase from any Issuer or Guarantor shares of capital stock or membership interests in any such Issuers or Guarantor are outstanding, (B) no agreements or other security interestsobligations to issue, liensor other rights to convert any obligation into, encumbrancesor exchange any securities for, equities capital stock or claimsmembership interests in any Issuer or Guarantor are outstanding and (C) no holder of securities of any Issuer or Guarantor (other than a holder of Notes, except for pledges of subsidiary stock Exchange Notes or Private Exchange Notes) is entitled to have such securities registered under debt instruments;a registration statement filed by the Issuers pursuant to the Registration Rights Agreement.
(iiiiv) Each of the statements set forth Issuers and the Guarantors has all requisite corporate or limited liability company power and authority to execute and deliver and perform its obligations under the heading “Description of Indenture, the Notes” in , the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Exchange Notes and the Indenture, provide a fair summary of such provisionsPrivate Exchange Notes; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar Indenture complies as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings form in all material respects as would be required to be disclosed in a prospectus pursuant to with the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action requirements of the Company and TIA; the Agreement Indenture has been duly and validly authorized, executed and delivered by the Company;
(v) Issuers and the execution Guarantors and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), ) constitutes the Indenture will be a legal, valid and legally binding agreement of each of the CompanyIssuers and the Guarantors, enforceable against each of the Company Issuers and the Guarantors in accordance with its terms terms, except that the enforcement thereof may be subject to (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effect). The Indenture meets and (ii) general principles of equity and the requirements for qualification under discretion of the TIAcourt before which any proceeding therefor may be brought.
(viv) The Notes are in the form contemplated by the Indenture. The Notes have each been duly authorized by all necessary corporate action of the Company andand validly authorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company Issuers and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the TrusteeTrustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the CompanyIssuers, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder , and enforceable against the Issuers in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of securities equity and the discretion of the Company has court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;proceeding therefor may be brought.
(viivi) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the CompanyIssuers, and and, when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the CompanyIssuers, entitled to the benefits of the Indenture, and enforceable against the Issuers in accordance with their terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(vii) The Guarantees are in the form contemplated by the Indenture. The Guarantees have been duly and validly authorized executed and delivered -18- by each of the Guarantors and, when the Notes are authenticated by the Trustee in accordance with the provisions of the Indenture, (a) the Guarantees and (b) the guarantees of the Exchange Notes and the Private Exchange Notes will have been duly and validly authorized by each of the Guarantors and when duly executed and delivered by the Guarantors (in accordance with the terms of the Indenture, and when the Exchange Notes or the Private Exchange Notes, as the case may be, are authenticated by the Trustee in accordance with the provisions of the Indenture), in each case (a) and (b), will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of the Guarantors, entitled to time the benefits of the Indenture and enforceable against the Guarantors in effect)accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(viii) Each of the Company Issuers and the Guarantors has all requisite corporate or limited liability company power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company andand validly authorized, when duly executed and delivered by each of the Company Issuers and the Guarantors and (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, other parties thereto) constitutes the valid and legally binding agreement of each of the CompanyIssuers and the Guarantors, enforceable against the Company Issuers and the Guarantors in accordance with its terms terms, except that (subject, as A) the enforcement thereof may be subject to enforcement of remedies, to applicable (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effect and except that (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) Each of the execution Issuers and delivery the Guarantors has all requisite corporate and/or other limited liability company power and authority to execute, deliver and perform their obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company ofIssuers and the Guarantors of the transactions contemplated hereby have been duly and validly authorized by the Issuers and the Guarantors. This Agreement has been duly executed and delivered by the Issuers and the Guarantors.
(x) The statements under the captions "Description of Certain Indebtedness," "Description of the Notes," and "Exchange Offer; Registration Rights" in the Final Memorandum insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings, and the statements made in the Final Memorandum under the heading "Certain United States Federal Income Tax Considerations," insofar as such statements summarize certain federal income tax laws of the United States, constitute a fair summary of the principal U.S. federal income tax consequences of an investment in the Notes.
(xi) To the knowledge of such counsel, except as described in the Final Memorandum, no legal or governmental proceedings are pending or threatened that seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes hereunder or the consummation of the other transactions described in the Final Memorandum under the caption "Use of Proceeds."
(xii) The execution, delivery and performance by the Company each Issuer and Guarantor of its obligations under, this Agreement, the Indenture, the Registration Rights AgreementAgreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering issuance and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do Purchasers) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) after giving effect to the effectiveness of the Amendment annexed to such opinion and the application of the proceeds from the issuance and sale of the Notes as described in the Final Memorandum, the terms and or provisions ofof any Contract listed on a schedule reasonably acceptable to the Initial Purchasers, except for any such conflict, breach, violation, default or event that would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws, certificate of formation or operating agreement, as applicable, of any Issuer or Guarantor, or constitute a default under, any indenture, mortgage, deed of trust, lease (iii) (assuming compliance with all applicable state securities or other material agreement or instrument, known to such counsel, to which "Blue Sky" laws and assuming the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws accuracy of the Company or representations and warranties of the Initial Purchasers in Section 8 hereof) any of its significant subsidiariesstatute, or any statute or any judgment, decree, order, rule or regulation known to and believed by such counsel to be normally applicable to transactions of the type contemplated by this Agreement, the Indenture and the Registration Rights Agreement, except for any such conflict, breach, default or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xiii) No consent, approval, authorization or order of any court or other governmental authority is required for the issuance and sale by the Issuers of the Notes to the Initial Purchasers or any arbitrator known the consummation by the Issuers of the other transactions contemplated hereby, except such as may be required under Blue Sky or state securities laws, as to which such counsel need express no opinion, and applicable to the Company or its significant subsidiaries;those which have previously been obtained.
(xxiv) the Company is not an “investment company” and, after After giving effect to the Offering sale of the Notes Securities to be sold hereunder and the application of the proceeds therefromfrom such sale (as described in the Final Memorandum under the caption "Use of Proceeds"), will not be none of the Parent, the Issuers or the Subsidiary Guarantors is an “"investment company”, " as such term is defined in the 1940 Act; and
(xi) such counsel does not know Investment Company Act of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes1940, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumas amended.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiiixv) No registration under the Act of the Notes Securities is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers ("QIBs") as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company Issuers and the Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to .
(xvi) Neither the extent such counsel deems proper, on certificates of responsible officers consummation of the Company and public officials andtransactions contemplated by this Agreement nor the sale, as to matters involving the application of laws of any jurisdiction other than the State of New York issuance, execution or the United States or the General Corporation Law delivery of the State Securities will violate Regulation T, U or X of Delaware, to the extent satisfactory in form and scope to counsel for Board of Governors of the Initial Purchasers, upon the Federal Reserve System. The opinion of ▇▇▇▇▇▇▇ LLP▇▇▇▇ & ▇▇▇▇▇ LLP may be subject to customary exceptions, assumptions and qualifications reasonably acceptable to the Initial Purchasers. An At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP shall additionally state that it has participated in conferences with officers and other representatives of the Parent and the Issuers, representatives of the independent public accountants for the Parent and the Issuers, representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(x)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, 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 contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Company's books and records included in the Final Memorandum). The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP described in this Section shall be delivered rendered to the Initial Purchasers at the request of the Issuers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasersshall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company opinion, in form and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are substance satisfactory in all material respects to the Initial Purchasers Purchasers, dated as of the Closing Date and counsel for addressed to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.of
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, Purchaser hereunder are subject to the continuing accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each the Closing Date, Date as if they had been made on and as of each the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to ; and the performance by the Company on and as of the Closing Date of its covenants and agreements obligations hereunder and to the following additional further conditions:
(a) On The Initial Purchaser shall not have advised the Closing Date, Company that the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Offering Memorandum, as of its date or the date of such opinionany supplement or amendment thereto, included or includes any contains an untrue statement of a material fact or omitted which is material, or omits to state any a fact which is material fact and is required to be stated therein or is necessary in order to make the statements thereinstatements, in the light of the circumstances under which they were made, not misleading. No order suspending the sale of the Preferred Stock in any jurisdiction shall have been issued on the Closing Date and no proceedings for that purpose shall have been instituted or shall be contemplated.
(iib) At Closing Date, the Initial Purchaser shall have received the favorable opinion of Cool▇▇ ▇▇▇ward LLP, counsel to the Company, dated the Closing Date, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to Piper & Marbury L.L.P., to the effect that:
(i) The Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are is a corporation validly existing as corporations and in good standing under the laws of their respective jurisdictions the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under Delaware.
(ii) The Company has the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full corporate power and corporate authority to own, lease and operate their respective properties and assets and conduct their respective businesses its business as described in the Final Offering Memorandum, and .
(iii) The outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and to such counsel's knowledge were not issued in violation of any preemptive rights. The Preferred Stock has corporate power to enter into been duly authorized and, upon issuance and delivery against payment therefor, in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable.
(iv) The shares of Common Stock initially issuable upon conversion of the Preferred Stock (i) have been duly authorized and validly reserved for issuance upon such conversion, and such shares, when issued and delivered upon such conversion in the manner provided for by the Preferred Stock, will be validly issued, fully paid and non-assessable and (ii) will conform to the description thereof contained in the Offering Memorandum.
(v) The Preferred Stock and the shares of Common Stock issuable upon conversion of the Preferred Stock, to the best of such counsel's knowledge, are not subject to preemptive or other similar rights.
(vi) There is no restriction upon the voting or transfer of any capital stock of the Company pursuant to the Company's Certificate of Incorporation or by-laws, in each case as amended, or in any agreement or other instrument to which the Company is a party of which such counsel has knowledge except as described in the Offering Memorandum; and no holders of securities of the Company have rights to the registration thereof under any agreement known to such counsel except as described in the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Offering Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;.
(iiivii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes This Agreement and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Registration Rights Agreement have been duly authorized by all necessary corporate action on the part of the Company Company, and the Agreement has have been duly executed and delivered by the Company;.
(vviii) Assuming the execution and delivery accuracy of the Indenture have been duly authorized Company's representations and warranties set forth in subparagraph (a) of Section 1, the accuracy of the Initial Purchaser's representations and warranties set forth in subparagraphs (b) and (c) of Section 2, and compliance with the procedures set forth in Section 7 hereof, and in reliance upon the acknowledgments, representations and agreements made, or deemed to be made, by each purchaser of Preferred Stock as set forth in the Offering Memorandum, the offer and sale of the Preferred Stock to the Initial Purchaser or the initial offer and resale of the Preferred Stock by the Initial Purchaser, in each case, in the manner contemplated by this Agreement and the Offering Memorandum are exempt from the registration requirements of the Securities Act it being understood that no opinion is expressed as to any subsequent resale of any such Preferred Stock.
(ix) The Preferred Stock, the Common Stock issuable upon the conversion of the Preferred Stock and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Offering Memorandum, and the form of certificate used to evidence the Preferred Stock is in due and proper form under Delaware law.
(x) To the best of such counsel's knowledge, and except as disclosed in the Offering Memorandum, there is no action, suit or proceeding at law or in equity or by or before any governmental instrumentality or other agency now pending or threatened against the Company which would require disclosure in the Offering Memorandum.
(xi) The information in the Offering Memorandum under the caption "Description of Capital Stock" to the extent that it constitutes matters of law, summaries of legal matters, the Company's Certificate of Incorporation, bylaws or legal proceedings, or legal conclusions, fairly summarizes the matters referred to therein. To the best of such counsel's knowledge, there are no statutes or regulations that are required to be described in the Offering Memorandum that are not described as required.
(xii) To the best of such counsel's knowledge, there are no franchises, contracts, indentures, mortgages, loan or credit agreements, notes, leases or other instruments required to be described or referred to in the Offering Memorandum, other than those described or referred to therein.
(xiii) To the best of such counsel's knowledge, no authorization, consent, approval of or qualification with, any governmental authority to required for the performance by the Company andof its obligations under this Agreement or the Registration Rights Agreement, when duly executed except such as may be required under state or other blue sky laws in connection with the purchase and delivered distribution of the Preferred Stock (as to which we express no opinion) by the Company Initial Purchaser and except such as have been made or obtained.
(assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be xiv) The Registration Rights Agreement is a legal, valid and binding agreement obligation of the Company, Company enforceable against the Company in accordance with its terms terms, except (subject, a) as to the enforcement of remedies, to applicable thereof may be limited by bankruptcy, reorganizationinsolvency (including, insolvencywithout limitation, all laws relating to fraudulent transfers), reorganizations, moratorium or other similar laws affecting enforcement of creditors’ ' rights generally from time and except as enforcement thereof is subject to time general principles of equity (regardless of whether enforcement is considered in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable a proceeding in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium equity or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indentureat laws), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viiib) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or and contribution thereunder may be limited by federal and or state securities laws or the policies underlying such laws, and public policy considerations)(c) subject to general equity principles and to limitations on the availability of equitable relief, including specific performance.
(ixxv) the execution The Company is not and delivery by the Company ofwill not become, and the performance by the Company as a result of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers Preferred Stock, and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the net proceeds therefromtherefrom as described in the Offering Memorandum, will not be an “"investment company”, " as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xiic) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum On or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement)Closing Date, the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ Piper & ▇▇▇▇▇▇▇ LLPMarbury L.L.P., counsel for the Initial PurchasersPurchaser, dated the Closing Date, such opinion or opinions with respect to certain legal matters relating to this Agreement the validity of the Preferred Stock, the Underlying Stock, the Offering Memorandum and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ request and Piper & ▇▇▇▇▇▇▇ LLP Marbury L.L.P. shall have received and may rely upon such certificates and other documents papers and information as they request to enable it may reasonably request to pass upon such matters.
(cd) The Cool▇▇ ▇▇▇ward LLP shall state in the opinion letter contemplated by Section 6(b) that such counsel has participated in conferences with officers and other representatives of each of the Company and representatives of the independent public accountants for the Company and the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters datedPurchaser, respectivelyat which conferences the contents of the Offering Memorandum and related matters were discussed, and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Offering Memorandum and have made no independent check or verification thereof, on the basis of the foregoing, no facts have come to the attention of such counsel which has lead them to believe that the Offering Memorandum, as of its date hereof 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, in light of the circumstances in which they were made, except that such counsel need express no opinion or belief with respect to the financial statements and related notes, the pro forma financial information and other financial, statistical or accounting data included the Offering Memorandum or excluded therefrom).
(e) At the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company Purchaser shall have furnished or caused to be furnished to the Initial Purchasers at the Closing received a certificate of its Chairman the Company signed by the principal executive officer and by the chief financial or chief accounting officer of the BoardCompany, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to in their capacities as such, dated the Initial Purchasers Closing Date, to the effect that each of such persons has carefully examined the Offering Memorandum, this Agreement and the Registration Rights Agreement, and that:
(i) the representations and warranties of the Company in this Agreement and the Registration Rights Agreement are true and correct correct, as if made on and as of the Closing Date; , and the Company has performed complied with all agreements and covenants and agreements and satisfied all conditions contained in this Agreement and the Registration Rights Agreement on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the qualification or exemption from qualification of the Preferred Stock shall have been issued and no proceedings for that purpose shall have been commenced or, to the knowledge of the Company, be contemplated;
(iii) since the date of the most recent financial statements included in the Offering Memorandum, there has been no material adverse change in the condition, financial or otherwise, results of operation or business of the Company, taken as a whole, except as set forth in the Offering Memorandum;
(iv) none of the Offering Memorandum or any such amendment or supplement includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(iiv) subsequent to the respective dates as of which information is given in the Final Memorandum Offering Memorandum: (exclusive of any amendment or supplement thereto), neither a) the Company nor any has not incurred up to and including the Closing Date, other than in the ordinary course of its subsidiaries business, any material liabilities or obligations, direct or contingent, except as disclosed in the Offering Memorandum; (b) the Company has not paid or declared any dividends or other distributions on its capital stock; (c) the Company has not entered into any material transactions not in the ordinary course of business, except as disclosed in the Offering Memorandum; (d) there has not been any material change in the capital stock; (e) the Company has not sustained any material loss or interference with their respective businesses damage to its property or properties from fire, flood, hurricane, accident or other calamityassets, whether or not covered by insurance, insured; and (f) there is no litigation which is pending or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in to the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results best of operations of the Company's knowledge threatened against the Company or any affiliated party of its subsidiariesany of the foregoing which would be reasonably likely to have a Material Adverse Effect and which is required to be set forth in an amended or supplemented Offering Memorandum which has not been set forth.
(f) On or before the date hereof the Initial Purchaser shall have received a letter, taken dated such date, addressed to the Initial Purchaser and the Company in form and substance satisfactory in all respects to the Initial Purchaser and Piper & Marbury L.L.P., from Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum including the following:
(i) confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and the Exchange Act and the applicable Rules and Regulations;
(ii) stating that it is their opinion that the consolidated financial statements of the Company included in the Offering Memorandum or incorporated by reference therein comply as a wholeto form in all material respects with the applicable accounting requirements of the Securities Act; and
(iii) stating that they have compared specific dollar amounts, except numbers of shares, percentages of revenues and earnings, statements and/or other financial information pertaining to the Company set forth in the Offering Memorandum in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures need not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement.
(g) At the Closing Date, the Initial Purchaser shall have received from Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ a letter, dated as described of the Closing Date to the effect that they reaffirm that statements made in or contemplated the letter furnished pursuant to subsection (f) of this Section 6, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Date to the further effect that they have carried out procedures as specified in clause (iii) of subsection (f) of this Section 6 with respect to certain amounts, percentages and financial information as specified by the Final Initial Purchaser and deemed to be a part of the Offering Memorandum and have found such amounts, percentages and financial information to be in agreement with the records specified in such clause (exclusive of any amendment or supplement theretoiii).
(eh) At the Closing Date, Piper & Marbury L.L.P. shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Preferred Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Preferred Stock and with respect to the shares of Common Stock issuable upon conversion of the Preferred Stock as herein contemplated shall be satisfactory in form and substance to the Initial Purchaser and Piper & Marbury L.L.P.
(i) The Preferred Stock shall have been approved by the National Association of Securities Dealers, Inc. for trading in the PORTAL market.
(j) Trading in the Common Stock shall not have been suspended by the Nasdaq Stock Market (National Market) at any time after October 2, 1997.
(k) Subsequent to the execution and delivery of this Agreement and prior to until the Closing Date, Date there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changefollowing: (i) trading in securities generally on the New York Stock Exchange, in the rating accorded any of American Stock Exchange, the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2Nasdaq Stock Market (National Market) under or the Act.
(f) The Indenture over-the-counter market shall have been executed and delivered by all the parties thereto.
(g) On the Closing Datesuspended or limited, the Initial Purchasers or minimum prices shall have received the Registration Rights Agreement executed been established on either of such exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in securities of the Company and such agreement shall be on any exchange or in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers over-the-counter market shall have received such further certificates, documents been suspended or other information as they may (ii) any moratorium on commercial banking activities shall have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies been declared by Federal or New York State authorities or (iii) an outbreak or escalation of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.hostilities or a declaratio
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in on the Initial Purchasers’ sole discretion, Closing Date are subject to the accuracy accuracy, as of the Closing Date, of the representations and warranties of the Company LNR contained herein as of the date hereof herein, and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company LNR of its covenants and agreements obligations hereunder and to the following additional conditions:conditions (any of which may be waived in writing by the Initial Purchasers):
(a) On the Closing Date, Date the Initial Purchasers shall have received a legal opinion from ▇the opinions, dated as of the Closing Date and addressed to the Initial Purchasers (and stating that it may be relied upon by counsel to the Initial Purchasers), of Clifford Chance US LLP, counsel for LNR, and Bilzin ▇▇▇▇▇▇▇ Chance US ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP, special counsel to certain Designated Subsidiaries and the Land Partnership, in form and substance satisfactory to counsel for the Company, dated the Closing DateInitial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than Each of LNR, the financial statements Designated Subsidiaries and other financial information contained thereinthe Land Partnerships is duly organized, validly existing and, as to which such counsel need express no opinion) LNR and the Final MemorandumDesignated Subsidiaries that are corporations, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of organization and, has all requisite corporate or other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum. Each of LNR, the Designated Subsidiaries and the Company Land Partnerships is duly qualified to do business and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification and where LNR has corporate power to enter into this Agreement, informed such counsel the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes failure to be carried out by itso qualified would, individually or in the aggregate, have a Material Adverse Effect.
(ii) LNR has the authorized capital stock as set forth under “Capitalization” in the Final Memorandum; all of the outstanding shares of Common Stock and Class B Common Stock of LNR and the capital stock of each Designated Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and were not issued and in violation of any preemptive or similar rights; all of the outstanding shares of capital stock of the Designated Subsidiaries are owned by LNR or another Subsidiary, insofar as such counsel is aware, free and clear of all liens (other than those created pursuant to the Credit Agreement), encumbrances, equities and claims or restrictions on transferability (other than those imposed by the Act and the securities or “Blue Sky” laws of certain jurisdictions) or voting; LNR indirectly owns a 50% interest in each Land Partnership; such interest in each Land Partnership has been duly authorized and validly issued and is, insofar as such counsel is aware, free and clear of the Company’s significant subsidiariesall liens, encumbrances, equities and claims.
(iii) Insofar as such counsel is aware, except as otherwise set forth in the Final Memorandum, are owned beneficially Memorandum or in a document incorporated by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in reference into the Final Memorandum, insofar as (A) there are no outstanding options, warrants or other rights to purchase from LNR or any Designated Subsidiary or either Land Partnership shares of capital stock or ownership interests in LNR or any Designated Subsidiary or ownership interests in either Land Partnership, (B) other than LNR’s Class B Common Stock, there are no outstanding agreements or other obligations of LNR or any Designated Subsidiary to issue, or other rights to cause LNR or any Designated Subsidiary or either Land Partnership to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in LNR or any Designated Subsidiary or ownership interests in either Land Partnership and (C) no holder of securities of LNR or any Designated Subsidiary (other than the Notes) is entitled to have such statements purport to summarize certain provisions of the Notes and the Indenture, provide securities registered under a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed registration statement filed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;LNR.
(iv) LNR has all requisite corporate power and authority to execute, deliver and perform its obligations under the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of Notes, the Company Exchange Notes, the Private Exchange Notes, the Indenture and the Agreement Registration Rights Agreement.
(v) The Indenture is in sufficient form for qualification under the Trust Indenture Act; the Indenture has been duly and validly authorized, executed and delivered by the Company;
(v) the execution LNR, and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof of the Indenture by the Trustee), ) constitutes the Indenture will be a legal, valid and legally binding agreement of the CompanyLNR, enforceable against the Company LNR in accordance with its terms terms, except to the extent that the enforcement thereof may be affected by (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta proceeding in equity or at law). The Indenture meets the requirements for qualification under the TIA.
(vi) The Notes are in the form contemplated by the Indenture. The Notes have each been duly authorized by all necessary corporate action of the Company andand validly authorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company LNR and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the TrusteeTrustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the CompanyLNR, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder , and enforceable against LNR in accordance with their terms, except to the extent that the enforcement thereof may be affected by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of securities equity and the discretion of the Company has court before which any right which has not been fully exercised proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;at law).
(vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, LNR and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by LNR, the Company in accordance with the terms of exchange transactions described in, or as otherwise contemplated by the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of LNR, entitled to the Companybenefits of the Indenture, and enforceable against LNR in accordance with their terms terms, except to the extent that the enforcement thereof may be affected by (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta proceeding in equity or at law).
(viii) The Registration Rights Agreement has been duly and validly authorized, executed and delivered by LNR, and (assuming due authorization, execution and delivery thereof by the Company Initial Purchasers) constitutes the valid and legally binding agreement of LNR enforceable against LNR in accordance with its terms, except to the extent that (A) the enforcement thereof may be affected by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal or state securities laws or public policy considerations.
(ix) LNR has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the Registration Rights Agreementtransactions contemplated hereby; this Agreement and the Registration Rights consummation by LNR of the transactions contemplated hereby have been duly and validly authorized by LNR. This Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations)LNR.
(ixx) The Indenture, the execution Notes and delivery the Registration Rights Agreement conform as to legal matters in all material respects to the descriptions thereof contained or incorporated by reference in the Company ofFinal Memorandum.
(xi) Insofar as such counsel is aware there are (i) no legal or governmental proceedings pending or threatened to which LNR or any Designated Subsidiary or either Land Partnership is a party or to which the property or assets of LNR or any Designated Subsidiary or either Land Partnership is subject which would be required under the Act to be described in a registration statement under the Act or in a prospectus meeting the requirements of Section 10 of the Act, and are not described in the performance Final Memorandum, or which seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Final Memorandum and (ii) no contracts, agreements or other documents to which LNR or any Designated Subsidiary or either Land Partnership is a party which would be required under the Act to be described in a registration statement or prospectus and are not described in the Final Memorandum. The descriptions contained or incorporated by reference in the Company Final Memorandum of its obligations under, this the Credit Agreement, the Registration Rights partnership agreements of each of the Land Partnerships, the separation and distribution agreement relating to the spin-off of LNR and the By-Laws of LNR are accurate in all material respects and fairly summarize the provisions of such agreements and documents which they purport to summarize.
(xii) Insofar as such counsel is aware, neither LNR nor any Designated Subsidiary is in violation of its certificate of incorporation or bylaws or other comparable organizational documents and neither Land Partnership is in violation of the partnership agreement under which it was formed.
(xiii) The execution, delivery and performance of this Agreement, the Indenture and the NotesRegistration Rights Agreement, and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the Exchange Notes and the Private Exchange Notes, the issuance, offering issuance and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do Purchasers) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a lien on any property or assets of LNR or any Subsidiary or Investment Affiliate with respect to (i) the terms or provisions of any of the terms and or provisions ofof any material contract, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to instrument of which such counsel, counsel is aware to which the Company LNR or any of its significant subsidiaries Designated Subsidiary or either Land Partnership is a party or by which the Company LNR or any Designated Subsidiary or either Land Partnership may be bound, (ii) the certificate of its significant subsidiaries incorporation or bylaws or other comparable organizational documents of LNR or any Designated Subsidiary or the partnership agreement of their respective properties are boundeither Land Partnership, or (iii) (assuming compliance with all applicable state securities or “Blue Sky” laws and assuming the charter documents or by-laws accuracy of the Company or representations and warranties of the Initial Purchasers in Section 8 hereof) any of its significant subsidiariesstatute, or any statute or any judgment, decree, order, rule or regulation generally applicable to transactions of any court the type contemplated by the Final Memorandum or other governmental authority or any arbitrator known to such counsel and to be applicable to the Company LNR or its significant subsidiaries;any Designated Subsidiary or either Land Partnership.
(xxiv) No consent, approval, authorization or order of any governmental authority is required for the Company is not an “investment company” and, after giving effect to the Offering issuance and sale by LNR of the Notes to the Initial Purchasers or the other transactions contemplated in this Agreement, except (i) as may be required under applicable securities laws in connection with the registration under the Act of the Notes, and the Private Exchange Notes, if applicable, pursuant to the Registration Rights Agreement and (ii) as may be required under state securities or blue sky laws (as to which such counsel need express no opinion).
(xv) Neither LNR nor any of its subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds therefromfrom such sale (as described in the Final Memorandum under the caption “Use of Proceeds”) will be, will not be an “investment company”, ” as such term is defined in the 1940 Investment Company Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which , and the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumrules and regulations thereunder.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiiixvi) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIATrust Indenture Act, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers Qualified Institutional Buyers or Accredited Investors, as those terms are defined in Rule 144A promulgated the rules under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation SAct, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company LNR contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereofhereof and the offering and transfer procedures set forth in the Final Memorandum.
(xvii) Neither the sale, issuance, execution or delivery of the Notes nor any other transaction contemplated by this Agreement will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
(xviii) The statements under the captions “Description of the Notes,” “Exchange Offer; Registration Rights” and “Notice to Investors; Transfer Restrictions” in the Final Memorandum or incorporated therein by reference, insofar as such statements constitute a summary of the documents referred to therein or matters of law, provide a fair and accurate summary in all material respects of the information called for with respect to such documents and matters under current law. At the time the foregoing opinion is delivered, Clifford Chance US LLP shall additionally state that it has participated in conferences with officers and other representatives of LNR, representatives of the independent public accountants for LNR, representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(xviii)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (it being understood that such firm need express no belief with respect to the financial statements and related notes thereto and the other financial or statistical data included in the Final Memorandum). In rendering any such its opinion, such counsel Clifford Chance US LLP may rely, state that they express no opinion as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York or the United States or and the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇▇▇, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Purchase
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for MergerCo, or, as to such of the Companyfollowing matters as EHI may request, dated ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for EHI and the Closing DateSubsidiary Guarantor, in form and substance satisfactory to counsel for the Initial Purchaser, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company MergerCo is duly incorporated and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under MergerCo, EHI and the Exchange Act) have been duly organized and are Subsidiary is a validly existing as corporations corporation in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation incorporation, with all requisite corporate power and are authority to own its properties and conduct its business as now conducted and as described in the Final Memorandum; each of MergerCo, EHI and the Subsidiary is duly qualified to transact do business as a foreign corporations corporation and are is in good standing under the laws of in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such counsel has been advised that qualification, except where the failure to be so qualified would amount or be in good standing could not reasonably be expected to have, individually or in the aggregate, a material liability or disability to Material Adverse Effect.
(ii) All of the Company outstanding shares of the Subsidiary are owned by EHI.
(iii) MergerCo and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries EHI have full all requisite corporate power and authority to ownexecute, lease deliver and operate perform their respective properties obligations under the Notes, the Exchange Notes and assets and conduct their respective businesses as described the Private Exchange Notes. The Notes are in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and form contemplated by the Indenture and to carry out all the terms and provisions hereof and thereof and Supplemental Indenture. Each of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiariesNotes, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have has been duly and validly authorized by and, in the Companycase of the Notes, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture EHI (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture)provisions of the Indenture and, in the case of the Notes, delivery to and payment for by the Initial Purchaser in accordance with the terms of this Purchase Agreement) and constitute or, in the case of such Exchange Notes or Private Exchange Notes, will be the legal, constitute valid and legally binding obligations of MergerCo and EHI, entitled to the Company, benefits of the In- denture and enforceable against MergerCo and EHI in accordance with their terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable A) bankruptcy, insolvency, reorganization, insolvency, moratorium or other laws affecting creditors’ ' rights generally from time generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to time in effect)shareholders, or (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing.
(viiiiv) the Company The Subsidiary Guarantor has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement Guarantee. The Guarantee has been duly authorized by the Company andand validly authorized, when duly executed and delivered by the Company Subsidiary Guarantor and constitutes the valid and legally binding obligation of the Subsidiary Guarantor, entitled to the benefits of the Indenture and enforceable against the Subsidiary Guarantor in accordance with its terms, except that the enforcement thereof may be subject to (assuming A) bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, or (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing.
(v) MergerCo and EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their respective obligations under the Indenture. The Indenture conforms in all material respects with the provisions of the TIA applicable to an indenture which is qualified thereunder. The Indenture has been duly and validly authorized, executed and delivered by MergerCo. The Supplemental Indenture has been duly and validly authorized, executed and delivered by each of EHI and the Subsidiary Guarantor. The Indenture as supplemented by the Supplemental Indenture (assuming, in each case, the due authorization, execution and delivery thereof by the Initial PurchasersTrustee), will be constitutes a legal, valid and legally binding agreement agreement, in the case of the CompanyIndenture, of MergerCo and, in the case of the Indenture and the Supplemental Indenture, of EHI and the Subsidiary Guarantor, enforceable against MergerCo, EHI and the Company Subsidiary Guarantor, respectively, in accordance with its terms their respective terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable A) bankruptcy, insolvency, reorganization, insolvency, moratorium or other laws affecting creditors’ ' rights generally from time generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to time shareholders, or (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing.
(vi) MergerCo and EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their respective obligations under the Registration Rights Agreement. The Registration Rights Agreement has been duly and validly authorized by MergerCo and EHI and the Subsidiary Guarantor. The Registration Rights Agreement has been duly and validly executed and delivered by MergerCo and assumed by each of EHI and the Subsidiary Guarantor, and constitutes a valid and legally binding agreement of MergerCo, EHI and the Subsidiary Guarantor, enforceable against MergerCo and EHI and the Subsidiary Guarantor, respectively, in effect and accordance with its terms, except that (A) the enforcement thereof may be subject to (1) bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, or (2) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(vii) MergerCo and EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their obligations under this Purchase Agreement and to consummate the transactions contemplated hereby. This Purchase Agreement and the transactions contemplated hereby have been duly and validly authorized by MergerCo and EHI and the Subsidiary Guarantor. This Purchase Agreement has been duly and validly executed and delivered by MergerCo.
(viii) EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their obligations under the Assumption Agreement and to consummate the transactions contemplated thereby. The Assumption Agreement and the transactions contemplated thereby have been duly and validly authorized, executed and delivered by each of EHI and the Subsidiary Guarantor and constitutes a valid and legally binding agreement of EHI and the Subsidiary Guarantor, enforceable against EHI and the Subsidiary Guarantor in accordance with its terms, except that (A) the enforcement thereof may be subject to (1) bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, or (2) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing.
(ix) The statements set forth under the execution heading "Employment Agreements" under the caption "Management," under the headings "Management Agreement" and delivery by "Shareholders Agreement" under the Company ofcaption "Certain Relationships and Related Transactions," and under the captions "Description of Notes," "Description of New Credit Facility," "Description of Redeemable Preferred Stock and Warrants," and "Exchange Offer; Registration Rights" in the Final Memorandum, and insofar as such statements purport to summarize certain provisions of the performance by the Company of its obligations underEmployment Agreements, this Management Agreement, the Shareholders Agreement, Indenture, Securities, Exchange Notes, Private Exchange Notes, Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (Series A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Power Ten)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ Purchaser’s sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Offering Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Offering Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Offering Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial PurchasersPurchaser), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers Purchaser by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers Purchaser and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Offering Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Offering Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers Purchaser as contemplated by this Agreement and the Final Offering Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ Purchaser’s representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial PurchasersPurchaser, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers Purchaser and counsel for the Initial Purchasers Purchaser covering matters reasonably requested by the Initial PurchasersPurchaser. References to the Final Offering Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersPurchaser, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers Purchaser at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers Purchaser to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers Purchaser and counsel for the Initial Purchasers Purchaser shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser. The Company shall furnish to the Initial Purchasers Purchaser such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On No Initial Purchaser shall have discovered and disclosed to the Closing DateCompany prior to or on such Delivery Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, is material or omits to state any fact which is material and necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers Purchasers, and the Company shall have received a legal opinion from furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters;
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Chance US LLPshall have furnished to the Initial Purchasers its written opinion, as counsel for to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance reasonably satisfactory to the Closing DateInitial Purchasers, to the effect that:
(i) The Company and each of the Delaware Guarantors have been duly organized and are validly existing as corporations in good standing under the laws of Delaware, and have all corporate power and authority necessary to conduct their respective businesses as described in the Offering Memorandum;
(ii) All of the outstanding shares of Common Stock of the Company have been duly authorized, validly issued, fully paid and non-assessable; and all of the issued shares of capital stock of each Delaware Guarantor of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except for directors' qualifying shares) and, based solely on an examination of each such subsidiary's stock ledger and minute book, all such shares are held of record by the Company and/or a subsidiary of the Company;
(iii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming the Indenture is a valid and legally binding obligation of the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing;
(iv) The CODES have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the terms of the Purchase Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; and the CODES, when issued and delivered, will conform to the description thereof contained in the Offering Memorandum;
(v) The Conversion Shares that are authorized on the date hereof have been duly authorized and validly reserved for issuance upon conversion of the CODES; and the Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable;
(vi) The Guarantees have been duly authorized, executed and issued by the Delaware Guarantors and, assuming due authentication of the CODES by the Trustee, upon payment and delivery in accordance with the terms of the Purchase Agreement will constitute valid and legally binding obligations of each of the Delaware Guarantors enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing;
(vii) Assuming that the Guarantees have been duly authorized and issued by each of the Non-Delaware Guarantors and, assuming due authentication of the CODES by the Trustee, upon payment and delivery of the CODES in accordance with the terms of the Purchase Agreement, the Guarantees will constitute valid and legally binding obligations of the Non-Delaware Guarantors enforceable against the Non-Delaware Guarantors.
(viii) The statements contained in the Offering Memorandum under the captions "Risk Factors-The CODES are subordinated to all our existing and future senior indebtedness, which may inhibit our ability to repay you," "Risk Factors-The terms of our senior indebtedness could restrict our flexibility and limit our ability to satisfy obligations under the CODES," "Risk Factors--Future sales of common stock of L-3 Holdings in the public market could lower the stock price," "Risk Factors--Delaware Law and the charter documents of L-3 Holdings may impede or discourage a takeover, which could cause the market price of its shares to decline," "Description of Other Indebtedness," and "Description of the CODES," insofar as they describe charter documents, contracts, statutes, rules and regulations and other legal matters, constitute an accurate summary thereof in all material respects;
(ix) The statements contained in the Offering Memorandum under the caption "Certain United States Federal Income Tax Considerations," insofar as they purport to constitute summaries of matters of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects;
(x) This Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors; and
(xi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors and, assuming that the Registration Rights Agreement is the valid and legally binding obligation of the Initial Purchasers and Non-Delaware Guarantors, constitutes a valid and legally binding obligation of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms.
(xii) The issue and sale of the CODES and Guarantees being delivered on such Delivery Date by the Company and the Guarantors and the compliance by the Company and the Guarantors, as applicable, with all of the provisions of this Agreement and the Indenture will not breach or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed as an exhibit to a document incorporated by reference in the Offering Memorandum ("Exchange Act Documents") nor will such actions violate the Certificate of Incorporation or By-Laws or other organizational documents of the Company or the Delaware Guarantors, or any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law by any court or governmental agency or body or court having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets; and no consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law or, to such counsel's knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law is required for the issue and sale of the CODES by the Company (and the guarantees of such CODES by the Guarantors), except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the CODES and Guarantees by the Initial Purchasers. The opinions set forth in this paragraph are based upon our consideration of only those statutes, rules and regulations which, in such counsel's experience, are normally applicable to securities underwriting transactions.
(xiii) No registration of the CODES under the Securities Act and no qualification of the Indenture under the Trust Indenture Act is required for the offer and sale of the CODES by the Company to the Initial Purchasers or the reoffer and resale of the CODES by the Initial Purchasers to the initial purchasers therefrom solely in the manner contemplated by the Offering Memorandum, the Purchase Agreement and the Indenture. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States and the laws of the State of New York, the Delaware General Corporation Law and the Delaware Limited Liability Company Act. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date stating: Such counsel has not independently verified the accuracy, completeness or fairness of the statements made or included in the Offering Memorandum and take no responsibility therefor, except as and to the extent set forth in paragraphs (viii) and (ix) above. In the course of the preparation by the Company of the Offering Memorandum (excluding the Exchange Act Documents), such counsel participated in conferences with certain officers and employees of the Company, with representatives of PricewaterhouseCoopers, LLP and with counsel to the Company. Based upon such counsel's examination of the Offering Memorandum (including the Exchange Act Documents), such counsel's investigations made in connection with the preparation of the Offering Memorandum (excluding the Exchange Act Documents) and such counsel's participation in the conferences referred to above, such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Offering Memorandum, as of its date or including the date of such opinion, included or includes Exchange Act Documents contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and , except that in each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where case such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for need not express belief with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium financial statements or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act financial data contained in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumtherein by reference.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (L 3 Communications Holdings Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its covenants and agreements hereunder their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) On No Initial Purchaser shall have discovered and disclosed to the Company prior to or on the Closing DateDate that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the Initial Purchasers shall have received a legal opinion from of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Chance US LLP▇, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained thereinInitial Purchasers, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a is material fact or omitted or omits to state any fact which is material fact and 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.
(iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Transaction Documents, the Securities, the Exchange Securities and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Transaction Documents, the Securities, the Exchange Securities and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers; and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP shall have furnished to the Representatives their written opinion, as counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, in form and substance satisfactory to the Initial Purchasers, to the effect that:
(i) Each of the Company and the Guarantors has been duly incorporated and is validly existing as a corporation in good standing and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have limited liability company Guarantor has been duly organized and are is validly existing as corporations a limited liability company in good standing standing, in each case under the laws of their respective jurisdictions its jurisdiction of incorporation incorporation, and are is duly qualified to transact do business as foreign corporations and are is in good standing under (or equivalent status) as a foreign corporation or limited liability company in each jurisdiction identified by the laws of all other jurisdictions Company as a jurisdiction in which the Company or the Guarantors owns or leases real property or has employees, except where such counsel has been advised that the failure to be so qualified would amount to not have a material liability or disability to the Company Material Adverse Effect, and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full has all corporate power and authority necessary to own, lease and operate their respective own or hold its properties and assets and conduct their respective businesses the business in which it is engaged;
(ii) The Company has an authorized capitalization as described set forth in the Final Offering Memorandum;
(iii) The statements in the Offering Memorandum under the caption “Description of Notes”, and insofar as they purport to summarize the Company has corporate power to enter into this Agreementprovisions of the Indenture, the Registration Rights Agreement Agreement, the Securities, the Exchange Securities and the Indenture Guarantees, are accurate and complete in all material respects to carry out all the terms extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act;
(iv) To the best knowledge of such counsel and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except other than as otherwise set forth in the Final Offering Memorandum, there are owned beneficially by no legal or governmental proceedings pending to which the Company free and clear or any of its subsidiaries is a party or of which any perfected security interests orproperty or assets of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would reasonably be expected to have a Material Adverse Effect; and, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities no such proceedings are overtly threatened or claims, except for pledges of subsidiary stock under debt instrumentscontemplated by governmental authorities or threatened by others;
(iiiv) The execution, delivery and performance of this Agreement, the statements set forth under Indenture, the heading “Description Guarantees and the Registration Rights Agreement and the issuance of Notes” the Securities and the Exchange Securities and the consummation of the transactions contemplated hereby and thereby do not result in any violation of the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes certificates or articles of incorporation or bylaws of the Company or any of the Guarantors or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or the Guarantors or any of their respective properties or assets; and, except as may be required by the securities or “blue sky” laws of any state of the United States in connection with the sale of the Securities, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company and the Guarantors and the issuance of the Securities and the consummation of the transactions contemplated hereby and thereby;
(vi) No registration of the Securities under the Securities Act, and no qualification of the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Securities in the manner contemplated by the Offering Memorandum, this Agreement and the Indenture, provide a fair summary of such provisions; and ;
(vii) The statements in the statements set forth Offering Memorandum under the heading caption “Certain United States Federal Income Tax ConsequencesConsiderations,” in the Final Memorandum, insofar as such statements they purport to constitute a summary summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunderrespects;
(ivviii) The Company is not an “investment company” within the execution and delivery meaning of this Agreement have been duly authorized by all necessary corporate action the Investment Company Act of 1940, as amended;
(ix) Each of the Company and the Guarantors has all necessary corporate right, power and authority to execute and deliver each of the Transaction Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Securities to the Initial Purchasers;
(x) This Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company andauthorized, when duly executed and delivered by the Company and the Guarantors;
(xi) The Indenture has been duly authorized, executed and delivered by the Company and the Guarantors and, assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be constitutes a legal, legally valid and binding agreement of the Company, Company and the Guarantors enforceable against the Company and the Guarantors in accordance with its terms (subjectterms, except as to enforcement of remediesthe enforceability thereof may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and other similar laws relating to or other laws affecting creditors’ rights generally from time generally, subject to time general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in effecta proceeding in equity or at law). The Indenture meets the requirements for qualification under the TIA.;
(vixii) the Notes have The Registration Rights Agreement has been duly authorized by all necessary corporate action of the Company andauthorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and the Guarantors and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be constitutes a legal, valid and legally binding agreement of the Company and the Guarantors enforceable against the Company and the Guarantors in accordance with its terms except as rights to indemnity contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(xiii) The Securities and the Exchange Securities have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its their terms (subjectexcept as the enforceability thereof may be limited by bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and other similar laws relating to or other laws affecting creditors’ rights generally from time generally, subject to time general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in effect a proceeding in equity or at law);
(xiv) The Guarantees and the Exchange Guarantees have been duly authorized by the Guarantors and when the Securities and the Exchange Securities are duly endorsed in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Guarantors, entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms except that any rights to indemnity or contribution thereunder as the enforceability thereof may be limited by federal bankruptcy, insolvency, reorganization, moratorium and state securities other similar laws relating to or affecting creditors’ rights generally, subject to general principles of equity and public policy considerationsto limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law).; and
(ixxv) the execution The execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture, the Guarantees and the Registration Rights Agreement, the Indenture Agreement and the Notes, issuance of the Securities and the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Securities and the consummation of the other transactions herein contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease loan agreement or other material agreement or instrument, instrument known to such counsel, counsel to which the Company or any of its significant subsidiaries the Guarantors is a party or by which the Company or the Guarantors are bound or to which any of its significant subsidiaries the property or any of their respective properties are bound, or the charter documents or by-laws assets of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that Guarantors are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereofsubject. In rendering any such opinion, such counsel may rely, as state that its opinion is limited to matters of fact, to governed by the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of federal laws of any jurisdiction other than the State of New York or the United States or of America, the General Corporation Law laws of the State of DelawareWisconsin and the Wisconsin Business Corporation Law and may state that it is relying, to the extent satisfactory in form and scope to counsel for the Initial Purchasersrespect of matters of New York law, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇▇, and in respect of matters of fact, upon certificates of officers of the Company, provided that such counsel for shall state that it believes that the Initial PurchasersPurchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated the Closing Date, in form and substance satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with respect to certain legal matters relating to this Agreement officers and such other related matters as representatives of the Company, the Company’s independent public accountants, the Initial Purchasers may reasonably require. In rendering and their counsel, at which the contents of the Offering Memorandum (including the Exchange Act Reports) were discussed, and while such opinioncounsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum (including the Exchange Act Reports) except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (including the Exchange Act Reports), as of its date or as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that such counsel need express no belief as to the financial statements, financial and statistical data and supporting schedules contained in the Offering Memorandum (or in any Exchange Act Reports).
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP ▇▇, shall have received and may rely upon such certificates and other documents and information furnished to the Representatives its written opinion, as it may reasonably request counsel to pass upon such matters.
(c) The the Initial Purchasers, addressed to the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(de) The Representatives shall have received from the Accountants a letter (the “initial comfort letter”), in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to initial purchasers in connection with comparable private placements, in form and substance satisfactory to the Initial Purchasers; and with respect to the Closing Date, the Company shall have furnished to the Representatives the letter (the “bring-down letter”) of the Accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(f) The Company shall have furnished or caused to be furnished to the Initial Purchasers at Representatives on the Closing Date a certificate of its Chairman certificate, dated the Closing Date and delivered on behalf of the Board, Company by its President or its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect that:
(i) the representations representations, warranties and warranties agreements of the Company and each of the Guarantors in this Agreement Section 2 are true and correct as if made on of the date given and as of the Closing Date; and the Company has performed and the Guarantors have complied in all covenants and material respects with all their respective agreements and satisfied all conditions on its part contained herein to be performed or satisfied at or prior to or on the Closing Date; andDate and the condition set forth in Section 4(l), has been fulfilled;
(ii) subsequent to since the respective dates as of which information is given in the Final Offering Memorandum, other than as set forth in or contemplated by the Offering Memorandum (exclusive of any amendment amendments or supplement theretosupplements thereto subsequent to the date of this Agreement), (A) there has not occurred any change or any development that might have a Material Adverse Effect, (B) there has not been any change in the capital stock, the short-term debt, or the long-term debt of the Company or any of its subsidiaries that might have a Material Adverse Effect, (C) neither the Company nor any of its subsidiaries has sustained incurred any material loss liability or interference with their respective businesses obligation, direct or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of contingent that is material to the Company or any of and its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum whole and (exclusive of any amendment or supplement thereto).D) a Material Loss has not occurred;
(eiii) Subsequent to such officer has carefully examined the execution Offering Memorandum and, in such officer’s opinion (A) the Offering Memorandum, as of its date and delivery as of this Agreement and prior to the Closing Date, there shall did not have occurred include any downgrading, nor shall untrue statement of a material fact and did not omit to state any notice have been given of any intended material fact required to be stated therein or potential downgrading or of any review for a possible change that does not indicate necessary to make the direction of the possible changestatements therein, in the rating accorded any light of the Company’s securities by any “nationally recognized statistical rating organization”circumstances under which they were made, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, lettersnot misleading, and documents in such quantities as (B) since the Initial Purchasers shall reasonably request.date of the Offering
Appears in 1 contract
Sources: Purchase Agreement (Neomarkers Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Representative on behalf of the several Initial Purchasers to purchase and pay for the Offered Notes shall, on the Closing Date will be subjectsubject to the accuracy, in the Initial Purchasers’ sole discretionall material respects, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Dateherein, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofperformance, to the performance in all material respects, by the Company of its covenants and agreements obligations hereunder and to the following additional conditionsconditions precedent:
(a) On the Closing DateThe Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Required Loan Documents in respect of the Commercial Loans shall have been delivered to the Trustee pursuant to and as required by the Sale and Servicing Agreement.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Companycertificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer, Treasurer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that:, to the best of such officer’s knowledge
(i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such counsel certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has no reason complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinionA) the Final MemorandumTime of Sale Information, as of its date or the date Time of such opinionSale, included or includes contained any untrue statement of a material fact or omitted omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or any Additional Offering Document contained or contains an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iic) The Class A-1 Notes and the Company and Class A-2 Notes shall each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized rated no less than “Aaa” by ▇▇▇▇▇’▇, “AAA” by S&P, and are validly existing as corporations in good standing under “AAA” by Fitch, the laws of their Class B Notes shall have been rated no less than “Aa2” by ▇▇▇▇▇’▇, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by ▇▇▇▇▇’▇, “A” by S&P and “A” by Fitch, and the Class D Notes shall have been rated no less than “Baa1” by ▇▇▇▇▇’▇, “BBB” by S&P and “BBB+” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the failure to be so qualified would amount to a material liability or disability to rating of the Company and its subsidiaries, taken as a whole; Offered Notes have been placed under review.
(d) On the Company and each date of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the Company pursuant date of delivery thereof, in form and substance satisfactory to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation Representative on behalf of the other transactions herein contemplated do not (x) require the consentInitial Purchasers, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum.
(xiie) commencing with Initial Purchasers shall have received an opinion, dated the Company’s taxable year ended December 31Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes in-house counsel to the Initial Purchasers as contemplated by this Agreement Trustee, in form and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the .
(f) The Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers shall have received legal opinions of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇Winston & ▇▇▇▇▇▇ LLP. An opinion , counsel to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for (ii) with respect to certain “true sale” and “non–consolidation” issues in form and substance satisfactory to the Initial Purchasers covering matters reasonably requested by Representative on behalf of the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(bg) The Initial Purchasers shall have received a legal an opinion from of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial Purchasers, dated Company and the Closing DateTrust Depositor, with respect to certain legal matters relating “perfection issues” in form and substance satisfactory to this Agreement and such other related matters as the Representative on behalf of the Initial Purchasers.
(h) The Initial Purchasers may reasonably require. In rendering such opinion, shall have received opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received LLP, counsel to the Owner Trustee and may rely upon such certificates the Trust, with respect to certain trust matters and other documents with respect to certain “perfection issues,” in each case in form and information as it may reasonably request substance satisfactory to pass upon such mattersthe Representative on behalf of the Initial Purchasers.
(ci) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP the Trustee a letter certificate signed by one or letters datedmore duly authorized officers of the Trustee, respectively, the date hereof and dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchaserscustomary form.
(dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form.
(k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and its counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinionsfurther information, certificates, letters, certificates and documents in such quantities as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel.
(l) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Series A Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and are subject to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Issuer, be contemplated. No stop order suspending the sale of the Series A Notes in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Issuer, shall be contemplated.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any material change, or any development involving a prospective material change, in or affecting the condition (financial or other), business, properties, net worth, or results of operations of the Issuer and the Subsidiaries, taken as a whole, not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Series A Notes, or (ii) any event or development relating to or involving any officer or director of the Issuer or any Subsidiary which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Issuer and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Series A Notes.
(c) The Initial Purchasers shall have received a legal on the Closing Date an opinion from of ▇▇▇▇▇, Brown & ▇▇▇ Chance US LLP▇▇▇, counsel for the Company, dated the Closing DateDate and addressed to the Initial Purchasers, to the effect that:
(i) Each of the Issuer and the Subsidiaries is validly existing and in good standing under the laws of its jurisdiction or organization with full power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum (and any amendment or supplement thereto);
(ii) The Issuer has the requisite power and authority to enter into this Agreement and the Registration Rights Agreement and to issue, sell and deliver the Series A Notes to be sold by it to the Initial Purchasers as provided herein. This Agreement and the Registration Rights Agreement have been duly authorized, executed and delivered by the Issuer and are the valid, legal and binding agreements of the Issuer, enforceable against the Issuer in accordance with their terms, except (A) as enforcement of rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy and (B) subject to the qualification that the enforceability of each Issuer's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(iii) The Indenture has been duly and validly authorized, executed and delivered by the Issuer and, assuming due authorization, execution and delivery by the Trustee, is a valid and binding agreement of the Issuer, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Issuer's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles. No qualification of the Indenture under the TIA is required in connection with the offer and sale of the Series A Notes contemplated hereby or in connection with the Exempt Resales;
(iv) The Series A Notes have been duly and validly authorized by the Issuer and when executed by the Issuer in accordance with the Indenture and, assuming due authentication of the Series A Notes by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Issuer entitled to the benefits of the Indenture, subject to the qualification that the enforceability of the Issuer's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(v) Neither the offer, sale or delivery of the Series A Notes, the execution, delivery or performance by the Issuer of this Agreement, the Registration Rights Agreement or the Indenture, compliance by the Issuer with the provisions hereof or thereof or consummation by the Issuer of the transactions contemplated hereby or thereby (including the Recapitalization) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, in any material respect, the certificate or articles of incorporation, the certificate of limited partnership, the bylaws, the partnership agreement or other organizational documents of the Issuer or any Subsidiary, as applicable, or any material agreement, indenture, lease or other instrument listed on Exhibit B hereto (collectively, the "Material Agreements"), or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuer or any Subsidiary pursuant to the terms of any Material Agreement nor will any such action (assuming compliance with all applicable state securities and Blue Sky laws and, in the case of the Registration Rights Agreement and the transactions contemplated thereby, the Act, the Exchange Act and the TIA) result in any violation in any material respect of any existing New York, Illinois, Delaware corporate or federal law, regulation, ruling, judgment, injunction, order or decree known to such counsel, applicable to the Issuer or any Subsidiary or any of their respective properties;
(vi) Other than any state securities and Blue Sky laws, no consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Issuer for the valid issuance and sale of the Series A Notes to the Initial Purchasers as contemplated by this Agreement;
(vii) The Issuer and the Subsidiaries have full corporate power and authority to own their respective properties and to conduct their respective businesses as now being conducted as described in the Offering Memorandum;
(viii) The statements in the Offering Memorandum, insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions, are accurate in all material respects and present fairly the information required to be shown;
(ix) When the Series A Notes are issued and delivered pursuant to this Agreement, such Series A Notes will not be of the same class (within the meaning of Rule 144A(d)(3) under the Act) as any equity interests of the Issuer that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated interdealer quotation system;
(x) No registration of the Series A Notes under the Act is required for the sale of the Series A Notes to the Initial Purchasers as contemplated in this Agreement or for the Exempt Resales (assuming (A) that any Eligible Purchaser who buys the Series A Notes in the Exempt Resales is a QIB or a person other than a U.S. person outside the United States in reliance on Regulation S and (B) the accuracy of the Initial Purchasers' representations and those of the Issuer in this Agreement regarding the absence of general solicitation in connection with the Exempt Resales);
(xi) The Recapitalization has been duly authorized by the Company; and
(xii) Although such counsel have not undertaken, except as otherwise indicated in their opinion, to determine independently, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Offering Memorandum, such counsel have participated in the preparation of the Offering Memorandum, including review and discussion of the contents thereof, and nothing has no reason come to the attention of such counsel that has caused them to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Offering Memorandum, as of its date and as of the Closing Date, 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 date statements therein, in light of such opinionthe circumstances under which they were made, included not misleading or includes that any amendment or supplement to the Offering Memorandum, as of its respective date, and as of the Closing Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and the notes thereto and the schedules and other financial and statistical data included or incorporated by reference in the Offering Memorandum and information furnished in writing by or on behalf of the Initial Purchasers).
(d) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel of the Company, dated the Closing Date and addressed to the Initial Purchasers to the effect that:
(i) Each of the Issuer and the Subsidiaries is duly organized under the laws of its jurisdiction of organization.
(ii) Each of the Issuer and the Subsidiaries is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or to be in good standing does not have a Material Adverse Effect;
(iii) Upon consummation of the Recapitalization, all outstanding equity interests of the Issuer will have been duly authorized and validly issued, are fully paid and nonassessable, and not subject to any preemptive or similar rights;
(iv) Neither Issuer nor any Subsidiary is in violation in any material respect of its certificate or articles of incorporation, certificate of limited partnership, bylaws, partnership or other organizational documents, as applicable, or to the knowledge of such counsel after reasonable inquiry, is in default in any material respect in the performance of any material obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material agreement, indenture, lease or other instrument to which such Issuer or Subsidiary is a party or by which the Issuer or a Subsidiary or any of their respective properties may be bound, except as disclosed in the Offering Memorandum and except to the extent that any such violation or default would not reasonably be expected to have a Material Adverse Effect; and
(v) To the knowledge of such counsel, the Issuer and the Subsidiaries have all Permits that are required under applicable law to own their respective properties and to conduct their respective businesses as now being conducted as described in the Offering Memorandum except where the failure to have any such Permits would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect
(vi) To the knowledge of such counsel, (A) other than as described or contemplated in the Offering Memorandum (or any amendment or supplement thereto), there are no legal or governmental proceedings pending or threatened against the Issuer or a Subsidiary, or to which the Issuer or a Subsidiary or any of their properties are subject, which are not disclosed in the Offering Memorandum and which, if adversely decided, are reasonably likely to cause a Material Adverse Effect or materially affect the issuance of the Series A Notes or the consummation of the transactions contemplated by this Agreement and (B) there are no agreements, contracts, indentures, leases or other instruments material to the Issuer and the Subsidiaries, taken as a whole, that are not described in the Offering Memorandum (or any amendment or supplement thereto);
(vii) To the knowledge of such counsel, neither the Issuer nor any Subsidiary is in violation of any law, ordinance, administrative or governmental rule or regulation applicable to the Issuer or a Subsidiary or of any decree of any court or governmental agency or body having jurisdiction over the Issuer or a Subsidiary, except to the extent that any such violation would not reasonably be expected to have a Material Adverse Effect.
(viii) Except as described in the Offering Memorandum, such counsel does not know of any person who has the right, contractual or otherwise, to cause the Issuer to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Series A Notes or the right, as a result of the consummation of the transactions contemplated by this Agreement, to require registration under the Act of any equity interests of the Issuer;
(ix) To the knowledge of such counsel and except as has previously been obtained, the Issuer is not required to obtain stockholder consent for the issuance or offering of the Series A Notes;
(x) Nothing has come to the attention of such counsel that has caused him to believe that, as of the date of the Offering Memorandum or as of the Closing Date, the Offering Memorandum (except for the financial statements and the notes thereto and other financial and statistical data included therein and information furnished in writing by or on behalf of the Initial Purchasers, as to which such counsel need not express any belief) contains any untrue statement of a material fact or omits to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(be) The Initial Purchasers shall have received a legal on the Closing Date an opinion from of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel for the Initial Purchasers, dated the Closing Date, with respect and addressed to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(f) The Initial Purchasers may reasonably require. In rendering such opinionshall have received letters addressed to the Initial Purchasers, and dated the date hereof and the Closing Date from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectivelyLLP, independent certified public accountants, substantially in the date hereof and the Closing Date, in form and substance satisfactory to counsel for forms heretofore approved by the Initial Purchasers.
(di) The Company There shall not have furnished or caused to be furnished to been any change in the Initial Purchasers at the Closing a certificate of its Chairman capital stock of the Board, its President Issuer or its Chief Executive Officer and its Chief Financial Officer satisfactory to any Subsidiary nor any material increase in the Initial Purchasers to the effect that:
(i) the representations and warranties short-term or long-term debt of the Company Issuer or any Subsidiary (other than in this Agreement are true and correct as if made on and as the ordinary course of business) from that set forth or contemplated in the Closing DateOffering Memorandum (or any amendment or supplement thereto); and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to there shall not have been, since the respective dates as of which information is given in the Final Offering Memorandum (exclusive of or any amendment or supplement thereto), neither except as may otherwise be stated in the Company nor Offering Memorandum (or any of its subsidiaries has sustained amendment or supplement thereto), any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwiseother), managementbusiness, earningsprospects, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company Issuer and the Subsidiaries taken as a whole; (iii) the Issuer and the Subsidiaries shall not have any liabilities or any obligations, direct or contingent (whether or not in the ordinary course of its subsidiariesbusiness), that are material to the Issuer, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, other than those reflected in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Offe
Appears in 1 contract
Sources: Purchase Agreement (Restaurant Co)
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, Securities set forth opposite the name of such Initial Purchaser in the Initial Purchasers’ sole discretion, Schedule I is subject to the continuing accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each the Closing Date, Date as if they had been made on and as of each the Closing Date, to ; the accuracy on and as of the Closing Date of the statements of officers of the Company’s officers Company made pursuant to the provisions hereof, to ; the performance by the Company on and as of the Closing Date of its covenants and agreements hereunder hereunder; and to the following additional conditions:
(a) No stop order or similar order preventing or suspending the use of the Preliminary Memorandum or the Final Memorandum shall have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Initial Purchasers, shall be contemplated by any securities or other governmental authority in any jurisdiction (including, without limitation, the Commission); no order asserting that any of the transactions contemplated by this Agreement, Preliminary Memorandum or the Final Memorandum are subject to the registration requirements of the Act shall have been issued; and no securities or other governmental authority (including, without limitation, the Commission) shall have requested any additional information to be included in the Preliminary Memorandum or Final Memorandum or otherwise
(b) The Initial Purchasers shall not have advised the Company that the Final Memorandum contains an untrue statement of fact which, in the Initial Purchasers' opinion, is material, or omits to state a fact which, in the Initial Purchasers' opinion, is material and is required to be stated therein or is necessary to make the statements therein in light of the circumstances under which they were made not misleading.
(c) On or prior to the Closing Date, the Initial Purchasers shall have received a legal from counsel to the Initial Purchasers, such opinion from or opinions with respect to the issuance and sale of the Firm Securities, the Preliminary Memorandum and the Final Memorandum and such other related matters as the Initial Purchasers reasonably may request and such counsel shall have received such documents and other information as they request to enable them to pass upon such matters.
(d) On the Closing Date the Initial Purchasers shall have received the opinion, dated the Closing Date, of Hunton & ▇▇▇▇▇▇▇▇ Chance US LLP▇, counsel for to the Company, dated the Closing DateCompany ("Company Counsel"), to the effect thatset forth below:
(i) such counsel has no reason to believe that (other than the financial statements The Company is a duly incorporated and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations corporation in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have with full power and authority (corporate and other) to own, own or lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum;
(ii) The Company has the duly authorized and validly outstanding capitalization set forth under the caption "Capitalization" in the Final Memorandum and will have the adjusted capitalization set forth therein on the Closing Date and on the Option Closing Date (as the case may be), based on the assumptions set forth therein, except as otherwise contemplated in the Final Memorandum. The securities of the Company conform to the descriptions thereof contained in the Final Memorandum. The outstanding shares of Common Stock have been duly authorized and validly issued by the Company and are fully paid and nonassessable. Except as created hereby or referred to in the Final Memorandum, there are no outstanding options, warrants, rights or other arrangements requiring the Company at any time to issue any capital stock. No holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Securities or Conversion Shares and neither the filing of the Registration Statement nor the Offering gives rise to any rights, other than those which have been waived or satisfied and the MHS Registration Rights, for or relating to, the registration of any securities of the Company. The Company has full legal right, power and authority to issue the Securities and perform its obligations thereunder. The Securities have been duly authorized; on the Closing Date or the Option Closing Date (as the case may be), after payment therefor in accordance with the terms of this Agreement and when the Securities have been executed and delivered by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture, (a) the Securities will have been duly and validly executed, authenticated, issued and delivered, will not have been issued in violation of or subject to any preemptive or other similar right and will (x) constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits provided in the Indenture and the Registration Rights Agreement, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general principles of equity, and (y) be convertible into the Conversion Shares in accordance with the terms of the Indenture, and (b) good and marketable title to the Securities will pass to the Initial Purchasers on the Closing Date or the Option Closing Date (as the case may be) free and clear of any lien, encumbrance, security interest, claim or other restriction whatsoever, provided that the Initial Purchasers purchase the Securities in good faith and without notice of any adverse claims. The Conversion Shares have been duly and validly authorized and reserved for issuance upon conversion of the Securities and, when issued and delivered upon such conversion, will be duly and validly issued and outstanding, fully paid and nonassessable and will not have been issued in violation of or subject to any preemptive or other similar rights.
(iii) The Company has corporate full legal right, power and authority to enter into this Agreement, the Indenture, the Share Repurchase Agreement (the obligations of the Company under which being subject to the approval of its Board of Directors), the Registration Rights Agreement and the Indenture each Security and to carry out all consummate the terms transactions provided for herein and provisions hereof therein and thereof perform its obligations hereunder and of the Notes to be carried out by itthereunder; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiariesthis Agreement, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; the Registration Rights Agreement and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement each Security has been duly authorized, executed and delivered by the Company;
(v) ; and each of this Agreement, the execution Indenture, the Share Repurchase Agreement, the Registration Rights Agreement and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (each Security assuming the due authorization, execution and delivery thereof by each other party or parties hereto or thereto, and in the case of the Securities, authentication by the Trustee)Trustee in accordance with the Indenture, the Indenture is or will be upon issuance a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subjectterms, except as to enforcement of remedies, to limited by applicable bankruptcy, insolvency, reorganization, insolvency, moratorium or other laws now or hereafter in effect relating to or affecting creditors’ ' rights generally from time or by general principles of equity relating to time in effect). The Indenture meets the requirements for qualification under availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the TIA.
(vi) public policy underlying such laws, and the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and Securities are entitled to the benefits of the Indenture; no holder . None of securities the Company's execution or delivery of this Agreement, the Indenture, the Registration Rights Agreement and each Security, its performance hereof or thereof, its consummation of the transactions contemplated herein or therein or its application of the net proceeds of the Offering in the manner set forth under the caption "Use of Proceeds", conflicts or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon, any property or assets of the Company has pursuant to the terms of (A) the certificate of incorporation or by-laws of the Company; (B) the terms of any right indenture, mortgage, deed of trust, voting trust agreement, stockholder's agreement, note agreement or other agreement or instrument known to such counsel after reasonable investigation to which has not been fully exercised or waived to require the Company is a party or by which it is or may be bound or to register the offer which any of its assets, properties or sale business may be subject; or (C) any statute, rule or regulation of any regulatory body or administrative agency or other governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its activities or properties; or any judgment, decree or order, known to such counsel after reasonable investigation, of any government, arbitrator, court, regulatory body or administrative agency or other governmental agency or body, domestic or foreign, having such jurisdiction; and no consent, approval, authorization or order of any court, regulatory body or administrative agency or other governmental agency or body, domestic or foreign, has been or is required for the Company's performance of this Agreement, the Indenture, the Registration Rights Agreement or the Securities or the consummation of the transactions contemplated hereby or thereby, except such as have been obtained under state securities owned or blue sky laws in connection with the purchase and subsequent resale or placement distribution by such holder the Initial Purchasers of the Securities;
(iv) The Indenture is in a form to be qualified under the Act TIA and the Securities are in the offering of the Notes contemplated by this Agreement or in the Exchange Offer a form contemplated by the Registration Rights AgreementIndenture;
(viiv) The Securities delivered on such Closing Date are convertible into the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by shares of Common Stock of the Company in accordance with the terms of the Indenture; the Conversion Shares have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable;
(vi) The descriptions of the Indenture, the Share Repurchase Agreement and the Registration Rights Agreement set forth in the Final Memorandum are accurate and fairly describe such agreements in all material respects;
(vii) The descriptions of the Securities and the Indenture (assuming Conversion Shares in the due authorizationFinal Memorandum, execution and delivery of when such securities are issued and, with respect to the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes Securities, authenticated by the Trustee in accordance with the Indenture), will be the legal, valid are accurate and binding obligations of the Company, enforceable fairly describe such securities in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).all material respects;
(viii) To the Company has all requisite corporate power and authority to executebest of such counsel's knowledge, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement conduct of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement business of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” andin violation of any federal, after giving effect state or local statute, administrative regulation or other law, which violation is likely to the Offering of the Notes have a Material Adverse Effect; and the application of Company has obtained all licenses, permits, franchises, certificates and other authorizations from state, federal and other regulatory authorities as are necessary or required for the proceeds therefromownership, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any leasing and operation of its subsidiaries is a party or to which properties and the property of the Company or any conduct of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated business as presently conducted and as contemplated in the Final Memorandum.;
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiiiix) No registration under the Act of the Notes Securities is required in connection with the sale of the Notes Securities to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement)Statement, the Indenture indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) QIBs or Accredited Investors or (B) that the offer or sale of the Notes Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes Securities to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof;
(x) No securities of the Company are of the same class (within the meaning of Rule 144A) as the Securities and listed on a national securities exchange registered under Section 6 of the Exchange Act, or quoted in a U.S. automated inter-dealer quotation system;
(xi) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System; and (xii) No stop order or similar order preventing or suspending the use of the Final Memorandum has been issued; no proceedings for that purpose are pending, or, to the knowledge of such counsel, contemplated by any securities or other governmental authority in any jurisdiction (including, without limitation, the Commission); no order asserting that any of the transactions contemplated by the Initial Purchase Agreement or the Final Memorandum are subject to the registration requirements of the Act has been issued; and no securities or other governmental authority (including, without limitation, the Commission) has requested any additional information to be included in the Final Memorandum or otherwise. In addition, such counsel shall state that in the course of the preparation of the Preliminary Memorandum and Final Memorandum, such counsel has participated in conferences with officers and directors of the Company and with the Company's independent public accountants, at which conferences such counsel made inquiries of such officers, directors and accountants and discussed the contents of the Preliminary Memorandum and Final Memorandum and (without taking any further action to verify independently the statements made in the Preliminary Memorandum and Final Memorandum and, except as stated in the foregoing opinion, without assuming responsibility for the accuracy, completeness or fairness of such statements) nothing has come to such counsel's attention that causes such counsel to believe that the Final Memorandum as of the date thereof or as of the Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need not express any opinion with respect to the financial statements, schedules and other financial data included in the Preliminary Memorandum and Final Memorandum). In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, as to specified regulatory matters (to the extent satisfactory in form and scope to counsel for the Initial Purchasers, ) such counsel may rely upon or substitute the opinion of ▇▇▇▇▇▇▇ LLPspecial regulatory counsel reasonably satisfactory to the Initial Purchasers. An The foregoing opinion shall also state that the Initial Purchasers are justified in relying upon such opinion, and copies of ▇▇▇▇▇▇▇ LLP such opinions shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References .
(e) On or prior to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The , counsel to the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPbeen furnished such documents, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement certificates and such other related matters opinions as the Initial Purchasers they may reasonably require. In rendering such opinionrequire in order to evidence the accuracy, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matterscompleteness or satisfaction of any of the representations or warranties of the Company, or conditions herein contained.
(cf) The At the time that this Agreement is executed by the Company the Initial Purchasers shall have received from PricewaterhouseCoopers KPMG Peat Marwick LLP a letter or letters dated, respectively, as of the date hereof and this Agreement is executed by the Closing Date, Company in form and substance satisfactory to counsel for you (the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to "Original Letter"), and on the Closing Date the Initial Purchasers at shall have received from such firm a letter dated the Closing a certificate of its Chairman of the BoardDate stating that, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
a specified date not earlier than five (ii5) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and days prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given nothing has come to the attention of any intended or potential downgrading or of any review for a possible change such firm to suggest that does not indicate the direction of the possible change, statements made in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they Original Letter are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Initial Purchase Agreement (World Airways Inc /De/)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements Firm Debentures hereunder and are subject to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Debentures in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, or results of operations of the Company, the Subsidiaries or the Controlled Entities not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Debentures, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Debentures.
(c) The Initial Purchasers shall have received a legal on the Closing Date an opinion from of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Chance US LLP& ▇▇▇▇▇, L.L.C., counsel for the Company, dated the Closing DateDate and addressed to the Initial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “those subsidiaries that constitute "significant subsidiaries” (as defined in " under Rule 1.02(w1-02(w) of Regulation S-X under (the Exchange Act"Significant Subsidiaries") have has been duly organized incorporated and are is validly existing as corporations a corporation in good standing under the laws of their respective jurisdictions the jurisdiction of incorporation and are duly qualified its incorporation;
(ii) The Offering Memorandum with respect to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel Debentures has been advised prepared by the Company for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the failure transactions contemplated by this Agreement are subject to be so qualified would amount the registration requirements of the Act has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of such Counsel, is contemplated.
(iii) The Incorporated Documents heretofore filed were filed in a timely manner and, when they were filed (or, if any amendment with respect to any such document was filed, when such document was filed), conformed in all material liability or disability respects to the requirements of the Exchange Act.
(iv) The Indenture has been duly and validly authorized by the Company and, upon its execution, delivery and performance by the Company and assuming due authorization, execution, delivery and performance by the Trustee, will be a valid and binding agreement of the Company, enforceable in accordance with its subsidiariesterms, taken except as a wholeenforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and conforms in all material respects to the description thereof in the Offering Memorandum; no qualification of the Indenture under the 1939 Act is required in connection with the offer and sale of the Debentures contemplated hereby or in connection with the Exempt Resales.
(v) The Debentures have been duly authorized by the Company and, when executed by the Company and each authenticated by the Trustee in accordance with the Indenture and delivered to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of its significant subsidiaries have full power the Company entitled to the benefits of the Indenture and authority to ownenforceable in accordance with their terms, lease and operate their respective properties and assets and conduct their respective businesses except as described in enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the Final Memorandumenforcement of creditors' rights generally, and the Company has corporate power Debentures will conform in all material respects to enter into this Agreementthe description thereof in the Offering Memorandum.
(vi) The authorized, the Registration Rights Agreement issued and the Indenture and to carry out all the terms and provisions hereof and thereof and outstanding capital stock of the Notes Company is as set forth under the caption "Capitalization" in the Offering Memorandum as of the date indicated therein; all of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable, and have not been issued in violation of any preemptive right or, to be carried out by itthe best of such Counsel's knowledge, other similar right; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final MemorandumSignificant Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned beneficially by the Company Company, free and clear of any perfected security adverse claim; and all of the issued and outstanding partnership interests orrepresenting ownership in the Controlled Entities have been duly authorized and, to the extent material to the business, operations or financial condition of the Company, the Significant Subsidiaries and the Controlled Entities taken as a whole, validly issued, the partnership interests held of record by the Company are owned free and clear of any adverse claim, except such claims that would not have a Material Adverse Effect on the business, operations or financial condition of the Company, the Significant Subsidiaries and Controlled Entities taken as a whole; the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Offering Memorandum under the caption "Description of Capital Stock"; and the shares of Common Stock issuable upon conversion of the Debentures have been validly authorized and reserved for issuance and, when delivered upon conversion of the Debentures, will have been validly issued and fully paid and will be nonassessable and free of preemptive or similar rights;
(vii) Each of the Company and the Significant Subsidiaries has full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Offering Memorandum; and each of the Company and the Significant Subsidiaries is duly qualified to do business as a foreign corporation, and is in good standing in all jurisdictions in the United States, if any, in which it is required to be so qualified and in which the failure so to qualify would have a Materially Adverse Effect on the Company, the Subsidiaries and Controlled Entities, taken as a whole;
(viii) To the best of such Counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company, any Significant Subsidiary or any Controlled Entity, or to which the Company, any Significant Subsidiary or any Controlled Entity, or any of their property, is subject, which are required to be disclosed in the Offering Memorandum (or any amendment or supplement thereto) by the Act, other than those disclosed therein; and to the best knowledge of such counselCounsel after reasonable inquiry, neither the Company, any other security interestsSignificant Subsidiary or any Controlled Entity is in violation of any law, liensordinance, encumbrancesadministrative or governmental rule or regulation applicable to the Company, equities any Significant Subsidiary or claimsany Controlled Entity, except for pledges of subsidiary stock under debt instrumentsviolations, if any, which in the aggregate do not have a Material Adverse Effect;
(iiiix) Neither the statements set forth under Company, any Significant Subsidiary or any Controlled Entity is in violation of its respective certificate or articles of incorporation or bylaws, or other organizational documents, or to the heading “Description best knowledge of Notes” such Counsel after reasonable inquiry, is in default in the Final Memorandumperformance of any material obligation, insofar agreement or condition contained in any bond, debenture, note or other evidence of indebtedness, which default could have a Material Adverse Effect, except as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to may be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunderOffering Memorandum (or any amendment or supplement thereto);
(ivx) This Agreement and the execution and delivery of this Registration Rights Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company andauthorized, when duly executed and delivered by the Company (and, assuming the due authorization, execution and delivery thereof by the Trustee)you, the Indenture will be is a legalvalid, valid legal and binding agreement of the Company, enforceable against the Company in accordance with its terms (subjectterms, except as to enforcement of remediesrights to indemnity and contribution hereunder may be limited by applicable law;
(xi) Each of the Company, the Significant Subsidiaries and the Controlled Entities holds all material permits, licenses, certificates of need and other approvals or authorizations of and from governmental regulatory officials and bodies necessary to applicable bankruptcyentitle it to own its properties and conduct its business as described in the Offering Memorandum, reorganizationor to receive reimbursement under Medicare (if represented in the Offering Memorandum as being Medicare- certified, insolvency, moratorium except where the lack of such approval or authorization would not have a Material Adverse Effect);
(xii) No holder of any security of the Company (other laws affecting creditors’ rights generally from time than holders of the Debentures and holders of shares of Common Stock received upon conversion thereof) has any right to time in effect). The Indenture meets request or demand registration of shares of Common Stock or any other security of the requirements for qualification under Company because of the TIAconsummation of the transactions contemplated by this Agreement or the Registration Rights Agreement.
(vixiii) When the Notes have been duly authorized by all necessary corporate action Debentures are issued and delivered pursuant to this Agreement, such Debentures will not be of the same class (within the meaning of Rule 144A(d)(3) under the Act) as any security of the Company that is listed on a national securities exchange registered under Section 6 of the Exchange Act or that is quoted in a United States automated inter-dealer quotation system.
(xiv) Neither the Company nor any affiliate (as defined in Rule 501(b) of Regulation D ("Regulation D") under the Act) of the Company has directly, or through any agent (provided that no representation is made as to the Initial Purchasers or any person acting on their behalf), (A) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Act) which is or will be integrated with the offering and sale of the Debentures in a manner that would require the registration of the Debentures under the Act or (B) engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offering of the Debentures.
(xv) Except as otherwise provided in the Indenture, the Company is not required to deliver the information specified in Rule 144A(d)(4) in connection with the offering and resale of the Debentures by the Initial Purchasers.
(xvi) No registration of the Debentures under the Act is required for the sale of the Debentures to the Initial Purchasers as contemplated in this Agreement or for the Exempt Resales (assuming (A) that any Eligible Purchaser who buys the Debentures in the Exempt Resales is a Qualified Institutional Buyer, Accredited Investor or a person other than a U.S. person outside the United States in reliance on Regulation S, (B) the accuracy of the Initial Purchasers' representations and those of the Company in this Agreement regarding the absence of general solicitation in connection with the Exempt Resales and (C) the accuracy of the representations made by each Accredited Investor who purchases Debentures pursuant to an Exempt Resale as set forth in the letter of representation executed by such Accredited Investor in the form of Annex A to the Offering Memorandum).
(xvii) The Company is not required to obtain stockholder consent or approval pursuant to the rules of the New York Stock Exchange in connection with the offering and sale of the Debentures.
(xviii) The descriptions in the Offering Memorandum of statutes, governmental regulations, agreements, contracts, leases and other documents are accurate and fairly present the information required to be presented by the Act; and, to the best of such Counsel's knowledge, there are no statutes, governmental regulations, agreements, contracts, leases or documents of a character required to be described or referred to in the Offering Memorandum (or any amendment or supplement thereto) or to be filed as an exhibit to the Offering Memorandum that are not described or referred to therein and filed as required;
(xix) Neither the offer, sale or delivery of the Debentures, the execution, delivery or performance of this Agreement and the Indenture, compliance by the Company with the provisions hereof and thereof, nor consummation by the Company of the transactions contemplated hereby and thereby, conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws, or other organizational documents, of the Company, any Significant Subsidiary or any Controlled Entity or any agreement, indenture, lease or other instrument to which the Company, any Significant Subsidiary or any Controlled Entity is a party or by which any of them or any of their respective properties is bound or is known to such Counsel after reasonable inquiry, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, any Significant Subsidiary or any Controlled Entity.
(xx) A New York court would apply the substantive law of the State of New York in construing the Debentures and the Indenture and in ascertaining the validity of the payment of interest and the permissible rate of interest on the Debentures, and would hold that New York law governs the rights and obligations of the parties to the Debentures and the Indenture;
(xxi) A New York court applying the substantive law of the State of New York would hold that the payment of interest on the Debentures and the rate of interest provided pursuant to the Indenture with respect to the Debentures are not subject to the usury laws of the State of New York;
(xxii) An Alabama court should apply the substantive law of the State of New York in construing the Indenture and the Debentures and in ascertaining the validity of the payment of interest and the rate of interest provided pursuant to the Indenture with respect to the Debentures, and should hold that New York law governs the rights and obligations of the parties to the Debentures and the Indenture. Such Counsel may state that they have participated in conferences with officers and representatives of the Company and with its independent public accountants regarding the contents of the Offering Memorandum, but have not independently verified the statements made in the Offering Memorandum; and such Counsel will state that nothing has come to their attention which has caused them to believe that the Offering Memorandum (including the Incorporated Documents) as of its date and as of the Closing Date, the Notes will have been duly executed including, without limitation, all descriptions of statutes, governmental regulations, agreements, contracts, leases and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act documents contained in the offering of Offering Memorandum (including the Notes contemplated by this Agreement or in Incorporated Documents but not including the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes financial statements and the Private Exchange Notes have been duly authorized by the Companysupporting schedules, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indentureupon which such counsel need express no opinion), will be the legal, valid and binding obligations contained an untrue statement of the Company, enforceable in accordance with their terms (subject, as a material fact or omitted to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be state a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be fact required to be described stated therein or necessary to make the statements therein, in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act light of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum circumstances under which they were made, not misleading or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate Offering Memorandum, as of its Chairman of the Boardrespective date, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part , contained any untrue statement of a material fact or omitted to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any state a material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the each Initial Purchasers Purchaser to purchase and pay for the Notes shall, Securities to be subjectpurchased by it on the Closing Date hereunder are subject to the fulfillment, in the such Initial Purchasers’ Purchaser's sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the Initial Purchasers use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel been issued and no proceedings for the Company, dated the Closing Datethose purposes shall have been commenced or shall be pending or, to the effect that:knowledge of the Company and Parent Guarantor, threatened. No order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company and Parent Guarantor, threatened.
(b) Subsequent to the date hereof, (i) such counsel has no reason to believe that except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (other than financial or other), business, prospects, properties, assets, net worth or results of operations of the financial statements Parent Guarantor and other financial information contained thereinthe Subsidiaries, taken as to which such counsel need express no opiniona whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, and (ii) the Final Memorandum, as of its date or the date of such opinion, included or includes Offering Memorandum shall not contain any untrue statement of a material fact or omitted or omits omit to state any 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.
(ii) , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where correct any such counsel has been advised that the failure to be so qualified would amount to a material liability misstatement or disability to the Company and its subsidiariesomission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers’ representations in Section 8 and those , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateSecurities.
(bc) The Initial Purchasers shall have received a legal on the Closing Date an opinion from of Tuke ▇▇▇▇ & ▇▇▇▇▇▇▇, PLC counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form of Exhibit B hereto.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Osler, ▇▇▇▇▇▇ & Harcourt, Canadian counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form of Exhibit C hereto.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel for the Initial Purchasers, dated the Closing Date, and addressed to the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering request.
(f) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇, Canadian counsel for the Initial Purchasers, dated the Closing Date and addressed to the Initial Purchasers, with respect to such opinionmatters as the Initial Purchasers may request.
(g) The Initial Purchasers shall have received "cold comfort" letters addressed to the Initial Purchasers, and dated the date hereof and the Closing Date, from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, & Co. substantially in the date hereof and the Closing Date, in form and substance satisfactory to counsel for forms heretofore approved by the Initial Purchasers.
(di) The Company There shall not have furnished been any change in the capital stock of the Parent Guarantor or caused to be furnished any Subsidiary nor any material increase in the short-term or long-term debt of the Parent Guarantor or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Parent Guarantor and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Initial Purchasers at Parent Guarantor and the Closing Subsidiaries, taken as a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
whole; (iiii) all the representations and warranties of the Parent Guarantor and the Company contained in this Agreement are shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; and (iv) the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of each of the Company has and the Parent Guarantor (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(h) and in Section 7(i) hereof.
(i) The Company and the Parent Guarantor shall not have failed at or prior to the Closing Date to have performed all covenants or complied with any of their respective agreements herein contained and agreements and satisfied all conditions on its part required to be performed or satisfied complied with by them hereunder at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(ej) Subsequent to At the time of the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing DateAgreement, the Initial Purchasers Company shall have received the Registration Rights Agreement executed by the Company and such agreement shall be deliver in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, substantially final form to both the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for (i) the Initial Purchasers. The Company shall furnish amendment to the Initial Purchasers such conformed copies Loan and Security Agreement dated as of such opinionsJuly 18, certificates1997 between International Comfort Products Corporation (USA), lettersthe Borrower and NationsBank, and documents in such quantities as N.A., the Initial Purchasers shall reasonably request.Lender (the
Appears in 1 contract
Sources: Purchase Agreement (International Comfort Products Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase the Units hereunder are subject to the satisfaction of each of the following conditions:
(a) At the time of execution of this Agreement and pay on the Closing Date, and the Option Closing Date, as to the Additional Units, if any, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act shall have been issued and no proceedings for the Notes shall, that purpose shall have been commenced or shall be subject, in the Initial Purchasers’ sole discretionpending or, to the accuracy knowledge of the Company, be contemplated. No stop order suspending the sale of the Securities in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated.
(b) There shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt of the Company from that set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto subsequent to the date of the Offering Memorandum); (ii) the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Offering Memorandum (exclusive of any amendment or supplement thereto subsequent to the date of the Offering Memorandum); and (iii) all the representations and warranties of the Company contained herein in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of each the Closing Date or the Option Closing Date, as the case may be, as if made on and as of each the Closing Date or the Option Closing Date, to as the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofcase may be, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal certificate, dated the Closing Date or the Option Closing Date, as the case may be, and signed by the chief executive officer and the chief accounting officer of the Company (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(b) and in Sections 7(a), 7(c) and 7(c) hereof.
(c) The Company shall not have failed at or prior to the Closing Date or the Option Closing Date, as the case may be, to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date or the Option Closing Date, as the case may be.
(d) Subsequent to the date as of which information is given in the Offering Memorandum, except as otherwise stated in the Offering Memorandum (exclusive of any amendment or supplement thereto subsequent to the date of the Agreement) there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, results of operations or prospects of the Company or the Subsidiaries not contemplated by the Offering Memorandum (exclusive of any amendment or supplement thereto subsequent to the date of the Agreement) which in the opinion from ▇of the Initial Purchasers, would adversely affect the market for the Securities or (ii) any event or development relating to or involving the Company, or any officer or director of the Company which makes any statement made in the Offering Memorandum (exclusive of any amendment or supplement thereto subsequent to the date of the Agreement) untrue or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, adversely affect the market for any of the Securities.
(e) The Offering Memorandum shall have been printed and copies thereof distributed to the Initial Purchasers in such quantities as shall have been previously specified by them not later than 9:00 a.m. New York City time, on January 14, 1998, or at such later date and time as the Initial Purchasers may approve in writing.
(f) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, an opinion of ▇▇▇▇▇▇▇ Chance US & ▇▇▇▇ LLP, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Initial Purchasers and ▇▇▇▇▇▇▇ ▇▇▇▇▇, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been USA is a corporation duly organized incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have Delaware with full corporate power and authority to own, lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final Offering Memorandum, and ;
(ii) All the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final MemorandumUSA have been duly authorized and validly issued, are fully paid and nonassessable, and are wholly owned beneficially by the Company directly, free and clear of any perfected security interests orinterest, to the best knowledge of such counsellien, any adverse claim, equity or other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsencumbrance;
(iii) All the statements set forth under shares of capital stock of the heading “Description Company outstanding prior to the issuance of Notes” the Securities have been duly authorized and validly issued and are fully paid and nonassessable and not subject to any preemptive rights except as described in the Final Offering Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required opinion to be disclosed given in a prospectus pursuant to reliance upon the Act and the Exchange Act and the respective rules and regulations thereunderCertificate;
(iv) The Company has full corporate power and authority to execute, deliver and perform its obligations under the execution Operative Documents and delivery of to consummate the transactions contemplated by the Operative Documents and to issue, sell and deliver the Units pursuant to this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement;
(v) This Agreement has been duly authorized and validly executed and delivered by the Company;
(vvi) the execution and delivery of the The Indenture have has been duly authorized by the Company and, when duly and validly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be is a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Indenture by the Trustee), subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to enforcement of remediesenforceability, to applicable bankruptcy, reorganization, insolvency, moratorium general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or other laws affecting creditors’ rights generally from time at law); no qualification of the Indenture under the TIA is required in connection with the offer and sale of the Series A Notes contemplated hereby or in connection with the Exempt Resales; the Indenture complies as to time form in effect). The Indenture meets all material respects with the requirements for qualification under of the TIA, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder.
(vivii) The Units have been duly and validly authorized by the Company; the Series A Notes have been duly authorized by all necessary corporate action of the Company and, on when executed and as authenticated in accordance with the terms of the Closing DateIndenture and, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, the Series A Notes will have been duly executed be entitled to the benefits of the Indenture and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the IndentureTrustee), will be the legalsubject to applicable bankruptcy, valid insolvency, fraudulent conveyance, reorganization, moratorium and binding obligations of the Company, enforceable in accordance with their terms (similar laws affecting creditors' rights generally and subject, as to enforcement of remediesenforceability, to applicable bankruptcy, reorganization, insolvency, moratorium general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or other laws affecting creditors’ rights generally from time to time in effectat law).;
(viii) The Series B Notes have been duly authorized by the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Company;
(ix) The Notes Registration Rights Agreement has been duly authorized by the Company and, when duly and validly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be is a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Notes Registration Rights Agreement by the Initial Purchasers), subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to enforcement of remediesenforceability, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
general principles of equity (ix) the execution and delivery by the Company of, and the performance by the Company regardless of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result whether enforcement is sought in a breach proceeding in equity or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiariesat law);
(x) The Escrow Agreement has been duly authorized and validly executed and delivered by the Company and is not an “investment company” and, after giving effect to the Offering a valid and binding agreement of the Notes Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and the application delivery of the proceeds therefromEscrow Agreement by the Escrow Agent and any other party thereto other than the Company), will not be an “investment company”subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting creditors' rights generally and subject, as such term to enforceability, to general equitable principles of equity (regardless of whether enforcement is defined sought in the 1940 Act; anda proceeding in equity or at law);
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which The Pledge Agreement has been duly authorized and validly executed and delivered by the Company or any of its subsidiaries and is a party or to which the property valid and binding agreement of the Company, enforceable against the Company or any in accordance with its terms (assuming the due authorization, execution and delivery of its subsidiaries the Pledge Agreement by the Collateral Agent), subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is subject that would be required to be described sought in a prospectus pursuant to the Act that are not described proceeding in the Final Memorandum equity or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.at law);
(xii) commencing with the Company’s taxable year ended December 31, 1998, The Warrant Agreement has been duly authorized and validly executed and delivered by the Company was organized and has operated in conformity with the requirements for qualification as is a real estate investment trust (“REIT”) under the Code, valid and the Company’s present and proposed method binding agreement of operation, as represented by the Company, will permit enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Warrant Agreement by the Warrant Agent), subject to continue applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to so qualify.enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
(xiii) No registration under The Warrants have been duly authorized by the Act Company and, when executed and countersigned in accordance with the terms of the Notes is required in connection with the sale of the Notes Warrant Agreement and upon (A) delivery to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy against payment therefor of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared Warrants in accordance with the provisions terms hereof, (B) delivery to the applicable purchasers against payment therefor of this the Additional Warrants, if any, in accordance with the terms hereof, delivery to the Holders of the Initial Series A Notes of the Contingent Warrants in accordance with the terms of the Warrant Agreement, the Warrants will be entitled to the benefits of the Warrant Agreement and will be valid and binding obligations of the Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Warrant Agreement by the Warrant Agent) subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at the Closing Date.law);
(bxiv) The Initial Purchasers shall Warrant Shares to be issued upon the exercise of the Warrants have received been duly authorized and reserved for issuance by the Company and, when issued and delivered against payment of the exercise price as provided in the Warrant Agreement, the Warrant Shares will have been validly issued and will be fully paid and nonassessable and the issuance of the Warrant Shares will not be subject to any preemptive rights;
(xv) The Registration Agreement has been duly authorized and validly executed and delivered by the Company and is a legal opinion from valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Registration Agreement by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinionand the investors listed thereto), subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
(xvi) The Convertible Note Purchase Agreement has been duly authorized and validly executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Convertible Note Purchase Agreement by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ), subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles regardless of whether such principles are enforceable at law or equity.
(xvii) The Convertible Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the terms of the Convertible Note Purchase Agreement and, upon delivery to ▇▇▇▇▇▇▇ LLP shall have received ▇▇▇▇▇ of the Convertible Notes against payment therefor in accordance with the terms of the Convertible Note Purchase Agreement, the Convertible Notes will be entitled to the benefits of the Convertible Note Purchase Agreement and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (assuming the due authorization, execution and delivery of the Convertible Note Purchase Agreement by ▇▇▇▇▇▇▇ ▇▇▇▇▇), subject to the qualification that the enforceability of the Company's obligations thereunder may rely upon such certificates be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other documents laws relating to or affecting creditors' rights generally and information as it may reasonably request to pass upon by general equitable principles regardless of whether such mattersprinciples are enforceable at law or equity.
(cxviii) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP None of (A) the issuance, offer, sale or delivery of the Units, (B) the execution, delivery or performance of this Agreement or the other Operative Documents, or (C) the consummation by the Company of the transactions contemplated hereby or thereby, (1) requires any consent, approval, authorization or other order of, or registration or filing with, any United States federal, state or local court, regulatory body, administrative agency or other governmental body, agency or official (except such as may be required in connection under the securities or Blue Sky laws of various jurisdictions and except as may be required under the Communications Act of 1934, as amended by the Telecommunications Act of 1996 or the rules, regulations and written policies of the FCC ("U.S. Telecommunications Law") as to which no opinion is --------------------------- given), (2) conflicts with or constitutes a letter breach of, or letters dated, respectivelya default under, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President incorporation or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties by-laws of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at USA, (3) conflicts with or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of constitutes a breach of, or a default under, any amendment or supplement thereto)agreement, neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fireindenture, flood, hurricane, accident lease or other calamityinstrument, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of to which the Company or any of its subsidiariesthe Subsidiaries is a party or by which any of them or any of their respective properties may be bound, which is identified as material to the Company and the Subsidiaries, taken as a whole, except as set forth in each case an Officers' Certificate attached as described in or contemplated by an exhibit to such opinion (the Final Memorandum (exclusive of any amendment or supplement thereto"Exhibit").
(e) Subsequent to the execution , and delivery of this Agreement and which has not been waived prior to ------- the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies date of such opinionsopinion, certificates, letters, and documents in (4) violates the Delaware General Corporation Law or any U.S. federal (other than U.S. Telecommunications Law of which such quantities as the Initial Purchasers shall reasonably request.counsel need not express an opinion) or Colorado st
Appears in 1 contract
Sources: Purchase Agreement (Centennial Communications Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchasers Purchaser to purchase Securities on the Closing Date and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained each Option Closing Date as provided herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, is subject to the performance by the Company (and the Parent, solely for purposes of Section 5(k) hereof) of its covenants and agreements other obligations hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements The representations and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action warranties of the Company contained herein shall be true and correct on the Agreement has been duly executed date hereof and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date and each Option Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers statements of the Company and public officials and, its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form Closing Date and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the each Option Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing DateAgreement, there (i) no downgrading shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded assigned to the Securities or any other debt securities or preferred stock issued or guaranteed by the Company or any of the Company’s securities its Subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or any of its Subsidiaries (other than an announcement with positive implications of a possible upgrading).
(c) Subsequent to the execution and delivery of this Agreement, no event or condition of a type described in Section 1(e) hereof shall have occurred or shall exist, which event or condition is not described in the each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Offering Memorandum (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Initial Purchasers makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum.
(d) The Initial Purchasers shall have received on and as of the Closing Date and each Option Closing Date a certificate of an executive officer of the Company who has specific knowledge of the Company’s financial matters and is satisfactory to the Initial Purchasers (i) confirming that such officer has carefully reviewed the Time of Sale Information and the Offering Memorandum and, to the best knowledge of such officer, the representations and warranties of the Company in this Agreement are true and correct, (ii) and confirming that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and each Option Closing Date and (iii) confirming no event having the effect set forth in paragraphs (b) and (c) above shall have occurred.
(e) On the date of this Agreement and on the Closing Date and each Option Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Initial Purchasers, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Time of Sale Information and the Offering Memorandum; provided that the letter delivered on the Closing Date and each Option Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date or such Option Closing Date, as the case may be.
(f) ▇▇▇▇▇▇▇ Procter LLP, counsel for the Company, shall have furnished to the Initial Purchasers, at the request of the Company, their written opinion, dated the Closing Date and each Option Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Annex C hereto.
(g) ▇▇▇▇▇ ▇▇▇▇, Esq., General Counsel for the Company, shall have furnished to the Initial Purchasers, at the request of the Company, his written opinion, dated the Closing Date and each Option Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Annex D hereto.
(h) The Indenture Initial Purchasers shall have received on and as of the Closing Date and each Option Closing Date opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to such matters as the Initial Purchasers may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date and each Option Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date and each Option Closing Date, prevent the issuance or sale of the Securities.
(j) The Initial Purchasers shall have received on and as of the Closing Date and each Option Closing Date satisfactory evidence of the good standing of the Company and each of the Subsidiaries, in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Initial Purchasers may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by all a duly authorized officer of the parties theretoCompany and the Parent.
(gl) On The Securities shall have been approved by the Closing DateNASD for trading in the PORTAL Market and shall be eligible for clearance and settlement through DTC.
(m) The “lock-up” agreements, dated the date hereof, each substantially in the form of Exhibit B hereto, of the top five executive officers and the inside directors of the Company who are identified on Exhibit B-1 relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall have been delivered to the Initial Purchasers shall have received on or before the Registration Rights Agreement executed by the Company Closing Date and such agreement shall be in full force and effect at all times from and after on the Closing Date.Date and each Option Closing date;
(hn) On or before prior to the Closing Date and each Option Closing Date, the Initial Purchasers and counsel for Company shall have furnished to the Initial Purchasers shall have received such further certificatescertificates and documents as the Initial Purchasers may reasonably require for the purpose of consummating the transactions contemplated hereby.
(o) During the period beginning on the date hereof and continuing to and including the Closing Date and each Option Closing Date, documents not to offer, sell or otherwise dispose of any debt securities of the Company or warrants to purchase or otherwise acquire debt securities of the Company substantially similar to the securities (other information as they may have reasonably requested from than (i) the CompanySecurities, (ii) commercial paper issued in the ordinary course of business or (iii) securities or warrants permitted with the prior written consent of the Initial Purchasers). All opinions, certificatesletters, letters certificates and documents delivered pursuant to evidence mentioned above or elsewhere in this Agreement will comply shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Boston Properties LTD Partnership)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Series A Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and are subject to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company or any of the Guarantors, be contemplated. No stop order suspending the sale of the Series A Notes in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company or any of the Guarantors, shall be contemplated.
(b) Subsequent to the date as of which information is given in the Offering Memorandum, except as otherwise stated in the Offering Memorandum, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Series A Notes, or (ii) any event or development relating to or involving the Company , any of its Subsidiaries or any officer or director of the Company or any of its Subsidiaries which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company, the Guarantors and their counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Series A Notes.
(c) The Final Offering Memorandum shall have been printed and copies thereof distributed to the Initial Purchasers in such quantities as shall have been previously specified by them not later than 9:00 a.m., New York City time, on Febraury 3, 1997, or at such later date and time as the Initial Purchasers may approve in writing.
(d) The Initial Purchasers shall have received a legal on the Closing Date an opinion from of Jenkens & ▇▇▇▇▇▇▇▇ Chance US LLP▇▇, P.C., counsel for the Company, dated the Closing DateDate and addressed to the Initial Purchasers, to the effect that:
(i) The Company is a corporation duly incorporated and validly existing in good standing under the laws of Texas with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum;
(ii) Each of the Subsidiaries is a corporation duly incorporated and validly existing and in good standing under the laws of its jurisdiction of incorporation, with all requisite power and authority to own, lease, and operate its properties and to conduct its business as described in the Offering Memorandum; and all the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and to the knowledge of such counsel counsel, are wholly owned by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any security interest, lien, adverse claim, equity or other encumbrance, except as specifically described in the Offering Memorandum under the caption "Description Of Other Debt;"
(iii) The authorized capital stock of the Company is as set forth under the caption "Capitalization" in the Offering Memorandum;
(iv) The Company and each of the Guarantors have the corporate power and authority to enter into this Agreement and the Registration Rights Agreement and to issue, sell and deliver the Series A Notes to be sold to the Initial Purchasers as provided herein, and this Agreement and the Registration Rights Agreement have been duly and validly authorized, executed and delivered by the Company and the Guarantors and constitute the valid and binding agreements of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with their terms, except (A) as enforcement of rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy and (B) subject to the qualification that the enforceability of the Company's and the Guarantors' obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(v) The Indenture has been duly and validly authorized, executed and delivered by the Company and the Guarantors and, assuming due authorization, execution and delivery by the Trustee, constitutes the valid and binding agreement of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms, subject to the qualification that the enforceability of the Company's and the Guarantors' obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; no reason qualification of the Indenture under the 1939 Act is required in connection with the offer and sale of the Series A Notes contemplated hereby or in connection with the Exempt Resales;
(vi) The Series A Notes have been duly and validly authorized by the Company and when duly executed by the Company in accordance with the terms of the Indenture and, assuming due authentication of the Series A Notes by the Trustee, upon delivery to believe the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(vii) The Series B Notes have been duly and validly authorized by the Company and if and when duly issued and authenticated in accordance with the terms of the Indenture and delivered in accordance with the Exchange Offer provided for in the Registration Rights Agreement, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles.
(viii) The Series A Subsidiary Guarantees have been duly and validly authorized by the Guarantors and when duly executed and delivered by the Guarantors in accordance with the terms of the Indenture and upon the due execution, authentication and delivery of the Series A Notes in accordance with the Indenture and the issuance of the Series A Notes in the sale to the Initial Purchasers contemplated by this Agreement, will constitute valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, subject to the qualification that the enforceability of the Guarantors' obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(ix) The Series B Subsidiary Guarantees have been duly and validly authorized by the Guarantors and if and when duly executed and delivered by the Guarantors in accordance with the terms of the Indenture and upon the due execution, authentication and delivery of the Series B Notes in accordance with the Indenture and the issuance and delivery of the Series B Notes in the Exchange Offer contemplated by the Registration Rights Agreement, will constitute valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, subject to the qualification that the enforceability of the Guarantors' obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(x) None of the issuance, offer or sale of the Series A Notes and Series A Subsidiary Guarantees, the execution, delivery or performance by the Company and the Guarantors of this Agreement or the other Operative Documents, compliance by the Company and the Guarantors with the provisions hereof or thereof nor consummation by the Company and the Guarantors of the transactions contemplated hereby or thereby conflicts or will conflict with or constitutes or will constitute a breach of, or a default under the certificate or articles of incorporation or bylaws or other organizational documents of the Company or any of the Subsidiaries or the Credit Agreement, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to the terms of the Credit Agreement nor will any such action result in any violation of any existing law, or any regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws and, in the case of the Registration Rights Agreement, the Act, the Exchange Act and the 1939 Act), judgment, injunction, order or decree known to such counsel, applicable to the Company or the Subsidiaries or any of their respective properties;
(xi) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company or the Guarantors for the valid issuance and sale of the Series A Notes to the Initial Purchasers and the issuance of the Series A Subsidiary Guarantees in connection therewith as contemplated by this Agreement (other than the financial statements as may be required by applicable state securities and other financial information contained thereinBlue Sky laws, as to which such counsel need express no opinionopinions);
(xii) To the knowledge of such counsel, (A) other than as described or contemplated in the Offering Memorandum, there are no legal or governmental proceedings pending or threatened against the Company, the Guarantors or any of the other Subsidiaries or to which the Company or any of the Subsidiaries or any of their properties, are subject, which are not disclosed in the Offering Memorandum and which, if adversely decided, are reasonably likely to cause a Material Adverse Effect or materially affect the issuance of the Notes or the consummation of the other transactions contemplated by the Operative Documents and (B) there are no material agreements, contracts, indentures, leases or other instruments, that are not described in the Offering Memorandum;
(xiii) The statements under the captions "Risk Factors," "Management's Discussion and Analysis of Financial Condition and Results of Operations," "Business," "Description of Other Debt," and "Certain Federal Income Tax Consequences" in the Offering Memorandum, insofar as they are descriptions of contracts, agreements or other legal documents, (excluding contracts, agreements or other legal documents pertaining to Company-sponsored securitizations) or refer to statements of law or legal conclusions, are accurate in all material respects and present fairly the information required to be shown;
(xiv) Such counsel does not know of any person who has the right, contractual or otherwise, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Notes or the right, as a result of the consummation of the transactions contemplated by the Operative Documents, to require registration under the Act of any shares of Common Stock or other securities of the Company;
(xv) When the Series A Notes are issued and delivered pursuant to this Agreement, such Series A Notes will not be of the same class (within the meaning of Rule 144A(d)(3) under the Act) as any security of the Company that is listed on a national securities exchange registered under Section 6 of the Exchange Act or that is quoted in a United States automated interdealer quotation system;
(xvi) No registration of the Series A Notes under the Act is required for the sale of the Series A Notes to the Initial Purchasers as contemplated in this Agreement or for the Exempt Resales (assuming (A) that any Eligible Purchaser who buys the Series A Notes in the Exempt Resales is a QIB or Accredited Institution, (B) the Final accuracy of the Initial Purchasers' representations and those of the Company and the Guarantors in this Agreement and (C) the accuracy of the representations made by each Accredited Institution who purchases Series A Notes pursuant to an Exempt Resale as set forth in the letter of representation executed by such Accredited Institution in the form of Annex A to the Offering Memorandum) (it being understood that no opinion is being expressed as to any resale subsequent to the Exempt Resales or any resale of securities by any person other than the Initial Purchasers);
(xvii) The Company and the Guarantors are not required to deliver the information specified in Rule 144A(d)(4) in connection with the offering and resale of the Series A Notes by the Initial Purchasers;
(xviii) The Company is not required to obtain stockholder consent for the issuance or offering of the Notes; and In addition, such counsel shall also state that such counsel has participated in conferences with officers and representatives of the Company and the Guarantors, representatives of the independent public accountants for the Company and the Guarantors and the Initial Purchasers at which the contents of the Offering Memorandum and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for and has not verified the accuracy, completeness or fairness of the statements contained in the Offering Memorandum, and has not made any independent check or verification thereof, on the basis of the foregoing (relying as to materiality to the extent such counsel deemed appropriate upon facts provided by officers and other representatives of the Company and the Guarantors), no facts have come to the attention of such counsel that lead such counsel to believe that the Offering Memorandum, as of its date or as of the date of such opinionClosing Date, included contained or includes contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
misleading (ii) it being understood that such counsel need express no belief or opinion with respect to the Company financial statements and each other financial and statistical data included therein). The opinion of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under such counsel may be limited to the laws of their respective jurisdictions the state of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under Texas, the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or and California, the General Corporation Law of the State of DelawareDelaware and the federal laws of the United States. Such counsel may rely as to matters of New York and California law, as it relates to the extent satisfactory in form authorization and scope to counsel for enforceability of the Initial PurchasersOperative Documents only, upon on the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersdescribed below in Section 7(g).
(ce) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and on the Closing DateDate an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, in form and substance satisfactory to counsel for the Initial PurchasersEsq.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any General Counsel of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On dated the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company Date and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant addressed to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.th
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Representative on behalf of the several Initial Purchasers to purchase and pay for the Offered Notes shall, on the Closing Date will be subjectsubject to the accuracy, in the Initial Purchasers’ sole discretionall material respects, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Dateherein, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofperformance, to the performance in all material respects, by the Company of its covenants and agreements obligations hereunder and to the following additional conditionsconditions precedent:
(a) On the Closing DateThe Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Commercial Loans shall have been delivered to the Trustee pursuant to the Sale and Servicing Agreement.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Companycertificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that:
, to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such counsel certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has no reason complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinionA) the Final MemorandumTime of Sale Information, as of its date or the date Time of such opinionSale, included or includes contains any untrue statement of a material fact or omitted omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or any Additional Offering Document contained or contains an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iic) The Class A-1 Notes and the Company and Class A-2 Notes shall each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized rated no less than “Aaa” by ▇▇▇▇▇’▇, “AAA” by S&P, and are validly existing as corporations in good standing under “AAA” by Fitch, the laws of their Class B Notes shall have been rated no less than “Aa2” by ▇▇▇▇▇’▇, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by ▇▇▇▇▇’▇, “A” by S&P and “A” by Fitch, the Class D Notes shall have been rated no less than “Baa2” by ▇▇▇▇▇’▇, “BBB” by S&P and “BBB” by Fitch and the Class E Notes shall have been rated no less than “Baa3” by ▇▇▇▇▇’▇, “BBB-” by S&P and “BBB-” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the failure to be so qualified would amount to a material liability or disability to rating of the Company and its subsidiaries, taken as a whole; Offered Notes have been placed under review.
(d) On the Company and each date of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the Company pursuant date of delivery thereof, in form and substance satisfactory to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation Representative on behalf of the other transactions herein contemplated do not (x) require the consentInitial Purchasers, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum.
(xiie) commencing with Initial Purchasers shall have received an opinion, dated the Company’s taxable year ended December 31Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes in-house counsel to the Initial Purchasers as contemplated by this Agreement Trustee, in form and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the .
(f) The Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers shall have received legal opinions of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇Winston & ▇▇▇▇▇▇ LLP. An opinion , counsel to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for (ii) with respect to certain “true sale” and “non–consolidation” issues in form and substance satisfactory to the Initial Purchasers covering matters reasonably requested by Representative on behalf of the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(bg) The Initial Purchasers shall have received a legal an opinion from of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial Purchasers, dated Company and the Closing DateTrust Depositor, with respect to certain legal matters relating “perfection issues” in form and substance satisfactory to this Agreement and such other related matters as the Representative on behalf of the Initial Purchasers.
(h) The Initial Purchasers may reasonably require. In rendering such opinion, shall have received opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received LLP, counsel to the Owner Trustee and may rely upon such certificates the Trust, with respect to certain trust matters and other documents with respect to certain “perfection issues,” in each case in form and information as it may reasonably request substance satisfactory to pass upon such mattersthe Representative on behalf of the Initial Purchasers.
(ci) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP the Trustee a letter certificate signed by one or letters datedmore duly authorized officers of the Trustee, respectively, the date hereof and dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchaserscustomary form.
(dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form.
(k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and its counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinionsfurther information, certificates, letters, certificates and documents in such quantities as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel.
(l) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its covenants and agreements hereunder their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received discovered and disclosed to the Company prior to or on such Delivery Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a legal fact which, in the opinion from of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained thereinInitial Purchasers, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a is material fact or omitted or omits to state any fact which is material fact and 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.
(iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Transaction Documents, the Securities, the Conversion Shares and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Transaction Documents, the Securities, the Conversion Shares and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers; and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP shall have furnished to the Initial Purchasers their written opinion, as counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that:
(i) Each of the Company and the corporate Guarantors has been duly incorporated and is validly existing as a corporation in good standing (or equivalent status) and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have limited liability company Guarantor has been duly organized and are is validly existing as corporations a limited liability company in good standing (or equivalent status), in each case under the laws of their respective jurisdictions its jurisdiction of incorporation or organization, and are is duly qualified to transact do business as foreign corporations and are is in good standing under (or equivalent status) as a foreign corporation or limited liability company in each jurisdiction identified by the laws of all other jurisdictions Company as a jurisdiction in which the Company or the Guarantors owns or leases real property or has employees, except where such counsel has been advised that the failure to be so qualified would amount to not have a material liability or disability to the Company Material Adverse Effect, and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full has all corporate power and authority necessary to own, lease and operate their respective own or hold its properties and assets and conduct their respective businesses the business in which it is engaged;
(ii) The Company has an authorized capitalization as described set forth in the Final Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each the Company have been duly and validly authorized and conform to the description thereof contained in the Offering Memorandum in the section entitled “Description of Capital Stock”;
(iii) The Conversion Shares issuable at the initial Conversion Price have been duly authorized and validly reserved for issuance upon conversion of the CODES and are free of preemptive rights; and the Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable, except as provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted;
(iv) The statements in the Offering Memorandum under the captions “Description of the CODES” and “Description of Capital Stock”, insofar as they purport to summarize the provisions of the Indenture, the Registration Rights Agreement, the Securities and the Common Stock (including the Conversion Shares) are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act;
(v) Except for options to purchase shares of Common Stock described in the Offering Memorandum, there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s significant subsidiariesarticles of incorporation or bylaws, except and there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to any agreement or other instrument to which the Company is a party known to such counsel;
(vi) To the best knowledge of such counsel and other than as otherwise set forth in the Final Offering Memorandum, there are owned beneficially by no legal or governmental proceedings pending to which the Company free and clear or any of its subsidiaries is a party or of which any perfected security interests orproperty or assets of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would reasonably be expected to have a Material Adverse Effect; and, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities no such proceedings are overtly threatened or claims, except for pledges of subsidiary stock under debt instrumentscontemplated by governmental authorities or threatened by others;
(iiivii) The execution, delivery and performance of this Agreement, the statements set forth Indenture, the Guarantees and the Registration Rights Agreement and the issuance of the CODES and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificates or articles of incorporation or bylaws of the Company or any of the Guarantors or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or the Guarantors or any of their respective properties or assets; and, except as may be required by the securities or “blue sky” laws of any state of the United States in connection with the sale of the Securities, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company and the Guarantors and the issuance of the Securities and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby;
(viii) No registration of the Securities or the Conversion Shares under the heading “Description Securities Act, and no qualification of Notes” the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Securities or in connection with the conversion of the Securities into Conversion Shares, in each case, in the Final manner contemplated by the Offering Memorandum, this Agreement and the Indenture;
(ix) The statements in the Offering Memorandum under the caption “Certain United States Federal Income Tax Considerations”, insofar as such statements they purport to summarize certain provisions constitute summaries of matters of United States federal income and estate tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunderrespects;
(ivx) The Company is not an “investment company” within the execution and delivery meaning of this Agreement have been duly authorized by all necessary corporate action the Investment Company Act of 1940, as amended;
(xi) Each of the Company and the Guarantors has all necessary corporate right, power and authority to execute and deliver each of the Transaction Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Securities and the Conversion Shares to the Initial Purchasers;
(xii) This Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company andauthorized, when duly executed and delivered by the Company and the Guarantors;
(xiii) The Indenture has been duly authorized, executed and delivered by the Company and the Guarantors and, assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be constitutes a legal, legally valid and binding agreement of the Company, Company and the Guarantors enforceable against the Company and the Guarantors in accordance with its terms (subjectexcept as the enforceability thereof may be limited by bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and other similar laws relating to or other laws affecting creditors’ rights generally from time generally, subject to time general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in effecta proceeding in equity or at law). The Indenture meets the requirements for qualification under the TIA.;
(vixiv) the Notes have The Registration Rights Agreement has been duly authorized by all necessary corporate action of the Company andauthorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and the Guarantors and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be constitutes a legal, valid and legally binding agreement of the Company and the Guarantors enforceable against the Company and the Guarantors in accordance with its terms except as rights to indemnity contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(xv) The CODES have been duly authorized, executed and issued by the Company and when authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its their terms (subjectexcept as the enforceability thereof may be limited by bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and other similar laws relating to or other laws affecting creditors’ rights generally from time generally, subject to time general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in effect a proceeding in equity or at law);
(xvi) The Guarantees have been duly authorized by the Guarantors and when duly endorsed on the CODES in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Guarantors, entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms except that any rights to indemnity or contribution thereunder as the enforceability thereof may be limited by federal bankruptcy, insolvency, reorganization, moratorium and state securities other similar laws relating to or affecting creditors’ rights generally, subject to general principles of equity and public policy considerationsto limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law).; and
(ixxvii) the execution The execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture, the Guarantees and the Registration Rights Agreement, the Indenture Agreement and the Notes, issuance of the Exchange Notes Securities and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Conversion Shares and the consummation of the other transactions herein contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease loan agreement or other material agreement or instrument, instrument known to such counsel, counsel to which the Company or any of its significant subsidiaries the Guarantors is a party or by which the Company or the Guarantors are bound or to which any of its significant subsidiaries the property or any of their respective properties are bound, or the charter documents or by-laws assets of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that Guarantors are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereofsubject. In rendering any such opinion, such counsel may rely, as state that its opinion is limited to matters of fact, to governed by the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of federal laws of any jurisdiction other than the State of New York or the United States or of America, the General Corporation Law laws of the State of DelawareWisconsin and the Wisconsin Business Corporation Law and may state that it is relying, to the extent satisfactory in form and scope to counsel for the Initial Purchasersrespect of matters of New York law, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, and in respect of matters of fact, upon certificates of officers of the Company, provided that such counsel for shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, dated to the Closing Dateeffect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with respect to certain legal matters relating to this Agreement officers and such other related matters as representatives of the Company, the Company’s independent public accountants, the Initial Purchasers may reasonably require. In rendering and their counsel, at which the contents of the Offering Memorandum (including the Incorporated Documents) were discussed, and while such opinioncounsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum (including the Incorporated Documents) except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (including the Incorporated Documents), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that such counsel need express no belief as to the financial statements, financial and statistical data contained in the Offering Memorandum (or in any Incorporated Documents).
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP LLP, shall have received furnished to the Initial Purchasers their written opinion, as counsel to the Initial Purchasers, addressed to the Initial Purchasers and may rely upon dated such certificates Delivery Date, in form and other documents and information as it may reasonably request substance satisfactory to pass upon such mattersthe Initial Purchasers.
(ce) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP the Accountants a letter or letters dated, respectively, (the date hereof and the Closing Date“initial comfort letter”), in form and substance satisfactory to counsel for the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to initial purchasers in connection with comparable private placements, in form and substance satisfactory to the Initial Purchasers; and with respect to each Delivery Date, the Company shall have furnished to the Initial Purchasers the letter (the “bring-down letter”) of the Accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(df) The Company shall have furnished or caused to be furnished to the Initial Purchasers at on the Closing applicable Delivery Date a certificate of its Chairman certificate, dated such Delivery Date and delivered on behalf of the Board, Company by its President or its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect that:
(i) the representations representations, warranties and warranties agreements of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes Securities shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Cotton, Bled▇▇▇, ▇▇▇▇▇ Chance US LLP& ▇aws▇▇, ▇ Professional Corporation, counsel for the Company, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the The Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been Subsidiaries is duly organized and are or incorporated, validly existing as corporations and in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of has all requisite corporate or other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum, . Each of the Company and the Material Subsidiaries is duly qualified as a foreign corporation or limited liability company and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have, individually or in the aggregate, a Material Adverse Effect.
(ii) The Company has corporate power to enter into this Agreement, the Registration Rights Agreement and authorized capitalization set forth in the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by itFinal Memorandum; all of the issued and outstanding shares of capital stock of each of the Subsidiaries are owned, directly or indirectly, by the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any all perfected security interests, other than security interests orgranted to the lenders under the Company's existing secured credit facility, and, to the best knowledge of such counsel, any free and clear of all other security interests, liens, encumbrances, equities and claims or claims, except for pledges restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of subsidiary stock under debt instruments;certain jurisdictions) or voting.
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no No holder of securities of the Company has or any right which has not been fully exercised or waived Subsidiary (other than the Registrable Notes) is entitled to require have such securities registered under a registration statement filed by the Company pursuant to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viiiiv) the The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the Registration Rights Agreementtransactions contemplated hereby; this Agreement and the Registration Rights consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company. This Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company Company.
(v) The Indenture (assuming the due authorization, execution and delivery thereof by the Initial PurchasersTrustee), will be a legal, constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that the enforcement thereof may be subject to (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) general principles of equity and the accuracy discretion of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering court before which any such opinion, such counsel proceeding therefor may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.be
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its covenants and agreements hereunder their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received discovered and disclosed to the Company prior to or on such Delivery Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a legal fact which, in the opinion from of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Chance US LLP▇, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained thereinInitial Purchasers, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a is material fact or omitted or omits to state any fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Transaction Documents, the Securities, the Conversion Shares and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Transaction Documents, the Securities, the Conversion Shares and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers; and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP shall have furnished to the Initial Purchasers their written opinion, as counsel to the Company and each the Guarantors, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that:
(i) Each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have Company and the Guarantors has been duly organized and are is validly existing as corporations a corporation in good standing under the laws of their respective jurisdictions of incorporation incorporation, and are is duly qualified to transact do business as foreign corporations and are is in good standing under (or equivalent status) as a foreign corporation in each jurisdiction in which its ownership or lease of property or the laws conduct of all other jurisdictions its business requires such qualification, except where such counsel has been advised that the failure to be so qualified would amount to not have a material liability or disability to the Company Material Adverse Effect, and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full has all corporate power and authority necessary to own, lease and operate their respective own or hold its properties and assets and conduct their respective businesses the business in which it is engaged;
(ii) The Company has an authorized capitalization as described set forth in the Final Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each the Company have been duly and validly authorized and conform to the description thereof contained in the Offering Memorandum in the section entitled "Description of Capital Stock";
(iii) The Conversion Shares that are authorized on the date hereof have been duly authorized and validly reserved for issuance upon conversion of the Company’s significant subsidiariesCODES and are free of preemptive rights; and the Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable, except as otherwise provided in Wisconsin Statutes Section 180.0622(2)(b) as judicially interpreted;
(iv) The statements in the Offering Memorandum under the captions "Description of the CODES" and "Description of Capital Stock", insofar as they purport to summarize the provisions of the Indenture, the Registration Rights Agreement, the Securities and the Common Stock (including the Conversion Shares) are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act;
(v) There are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's articles of incorporation or bylaws, and there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to any agreement or other instrument to which the Company is a party known to such counsel;
(vi) To the knowledge of such counsel and other than as set forth in the Final Offering Memorandum, there are owned beneficially by no legal or governmental proceedings pending to which the Company free and clear or any of its subsidiaries is a party or of which any perfected security interests orproperty or assets of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would reasonably be expected to have a Material Adverse Effect; and, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities no such proceedings are overtly threatened or claims, except for pledges of subsidiary stock under debt instrumentscontemplated by governmental authorities or threatened by others;
(iiivii) The execution, delivery and performance of this Agreement, the statements set forth Indenture, the Guarantees and the Registration Rights Agreement and the issuance of the CODES and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificates or articles of incorporation or bylaws of the Company or any of the Guarantors or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or the Guarantors or any of their respective properties or assets; and, except as may be required by the securities or "blue sky" laws of any state of the United States in connection with the sale of the Securities, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company and the Guarantors and the issuance of the Securities and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby;
(viii) No registration of the Securities or the Conversion Shares under the heading “Description Securities Act, and no qualification of Notes” the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Securities or in connection with the conversion of the Securities into Conversion Shares, in each case, in the Final manner contemplated by the Offering Memorandum, this Agreement and the Indenture;
(ix) The statements in the Offering Memorandum under the caption "Certain United States Federal Income Tax Considerations", insofar as such statements they purport to summarize certain provisions constitute summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunderrespects;
(ivx) The Company is not an "investment company" within the execution and delivery meaning of this Agreement have been duly authorized by all necessary corporate action the Investment Company Act of 1940, as amended;
(xi) Each of the Company and the Guarantors has all necessary corporate right, power and authority to execute and deliver each of the Transaction Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Securities and the Conversion Shares to the Initial Purchasers;
(xii) This Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company andauthorized, when duly executed and delivered by the Company and the Guarantors;
(xiii) The Indenture has been duly authorized, executed and delivered by the Company and the Guarantors and, assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be constitutes a legal, legally valid and binding agreement of the Company, Company and the Guarantors enforceable against the Company and the Guarantors in accordance with its terms (subjectexcept as the enforceability thereof may be limited by bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and other similar laws relating to or other laws affecting creditors’ ' rights generally from time generally, subject to time general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in effecta proceeding in equity or at law). The Indenture meets the requirements for qualification under the TIA.;
(vixiv) the Notes have The Registration Rights Agreement has been duly authorized by all necessary corporate action of the Company andauthorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and the Guarantors and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be constitutes a legal, valid and legally binding agreement of the Company and the Guarantors enforceable against the Company and the Guarantors in accordance with its terms except as rights to indemnity contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(xv) The CODES have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its their terms (subject, except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder the enforceability thereof may be limited by federal bankruptcy, insolvency, reorganization, moratorium and state securities other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and public policy considerationsto limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law).;
(ixxvi) the execution and delivery The Guarantees have been duly authorized by the Company of, Guarantors and when duly endorsed on the performance CODES in accordance with terms of the Indenture and delivered to and paid for by the Company Initial Purchasers, will constitute legally valid and binding obligations of its obligations underthe Guarantors, entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law); and
(xvii) The execution, delivery and performance of this Agreement, the Indenture, the Guarantees and the Registration Rights Agreement, the Indenture Agreement and the Notes, issuance of the Exchange Notes Securities and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Conversion Shares and the consummation of the other transactions herein contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease loan agreement or other material agreement or instrument, instrument known to such counsel, counsel to which the Company or any of its significant subsidiaries the Guarantors is a party or by which the Company or the Guarantors are bound or to which any of its significant subsidiaries the property or any of their respective properties are bound, or the charter documents or by-laws assets of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that Guarantors are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereofsubject. In rendering any such opinion, such counsel may rely, as state that its opinion is limited to matters of fact, to governed by the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of federal laws of any jurisdiction other than the State of New York or the United States or of America, the General Corporation Law laws of the State of DelawareWisconsin and the Wisconsin Business Corporation Law and may state that it is relying, to the extent satisfactory in form and scope to counsel for the Initial Purchasersrespect of matters of New York law, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇▇, and in respect of matters of fact, upon certificates of officers of the Company, provided that such counsel for shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, dated to the Closing Dateeffect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with respect to certain legal matters relating to this Agreement officers and such other related matters as representatives of the Company, the Company's independent public accountants, the Initial Purchasers may reasonably require. In rendering and their counsel, at which the contents of the Offering Memorandum (including the Incorporated Documents) were discussed, and while such opinioncounsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum (including the Incorporated Documents) except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (including the Incorporated Documents), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that such counsel need express no belief as to the financial statements, financial and statistical data and supporting schedules contained in the Offering Memorandum (or in any Incorporated Documents).
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP ▇▇, shall have received furnished to the Initial Purchasers its written opinion, as counsel to the Initial Purchasers, addressed to the Initial Purchasers and may rely upon dated such certificates Delivery Date, in form and other documents and information as it may reasonably request substance satisfactory to pass upon such mattersthe Initial Purchasers.
(ce) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP the Accountants a letter or letters dated, respectively, (the date hereof and the Closing Date"initial comfort letter"), in form and substance satisfactory to counsel for the Initial Purchasers, addressed to the Initial Purchasers and dated the date thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to initial purchasers in connection with comparable private placements, in form and substance satisfactory to the Initial Purchasers; and with respect to the Option Delivery Date, the Company shall have furnished to the Initial Purchasers the letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(df) The Company shall have furnished or caused to be furnished to the Initial Purchasers at on the Closing applicable Delivery Date a certificate of its Chairman certificate, dated such Delivery Date and delivered on behalf of the Board, Company by its President or its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect that:
(i) the representations representations, warranties and warranties agreements of the Company and each of the Guarantors in this Agreement Section 1 are true and correct as if made on of the date given and as of the Closing such Delivery Date; and the Company has performed and the Guarantors have complied in all covenants and material respects with all their respective agreements and satisfied all conditions on its part contained herein to be performed or satisfied at or prior to or on such Delivery Date and the Closing Date; andconditions set forth in Sections 3(f) and 3(m), have been fulfilled;
(ii) subsequent to since the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Offered Notes shall, on the Closing Date will be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements obligations hereunder and to the following additional conditionsconditions precedent:
(a) On the Closing DateThe Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Initial Purchasers Transaction Documents shall have received been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Business Loans shall have been delivered to the Indenture Trustee pursuant to the Sale and Servicing Agreement.
(b) The Initial Purchaser shall receive a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Companycertificate, dated the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Executive or Senior Vice President of the Company to the effect that such officer has carefully examined this Agreement, the Memorandum and the Transaction Documents and that:
, to the best of such officer's knowledge (i) since the date information is given in the Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Business Loans except as contemplated by the Memorandum or as described in such counsel certificates, (ii) the representations and warranties of the Company and Funding set forth herein and in the Transaction Documents are true and correct in all material respects as of the Closing Date, (iii) the Company has no reason complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, and (iv) nothing has come to the attention of such officer that would lead such officer to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, Memorandum as of its date and as of the Closing Date, or the date of such opinion, included or includes any Additional Offering Document contains an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iic) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) The Class A Notes shall have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiariesrated no less than "Aaa" by Moody's Investors Services, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
Inc. (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee"Moody's"), the Indenture will be "AAA" by Standard & Poor's Ratings Services, a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP▇n of The McGraw-Hill Companies, Inc. ("S&P"), and "AAA" by Fitch, I▇▇. An opinion of ("▇▇▇▇▇▇▇ LLP shall be delivered to ") and the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers Class B Notes shall have received a legal opinion from ▇▇▇been rated no less than "A2" by Moody's, "A" by S&P, and "A" by Fitch, such ratings shall ▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceedinge been rescinded, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture no public announcement shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed made by the Company and such agreement shall be in full force and effect at all times from and after respective rating agencies that the Closing Daterating of the Offered Notes have been placed under review.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements Firm Debentures hereunder and are subject to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Debentures in any jurisdiction designated by the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLPbeen issued and no proceedings for that purpose shall have been commenced or shall be pending or, counsel for to the knowledge of the Company, dated the Closing Date, shall be contemplated.
(b) Subsequent to the effect that:
effective date of this Agreement, there shall not have occurred (i) such counsel has no reason to believe that any change, or any development involving a prospective change, in or affecting the condition (other than financial or other), business, prospects, properties, net worth or results of operations of the financial statements and other financial information contained therein, as to which such counsel need express no opinion) Company or the Final Subsidiaries not contemplated by the Offering Memorandum, as which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Debentures, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its date counsel or the date Initial Purchasers and their counsel, requires the making of such opinion, included any addition to or includes any untrue statement of change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or omitted or omits to state any material fact necessary in order to make the statements thereintherein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy opinion of the Initial Purchasers’ representations in Section 8 and those of , materially adversely affect the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel market for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersDebentures.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and on the Closing DateDate an opinion of Calf▇▇, in form and substance satisfactory to ▇▇lter & Gris▇▇▇▇ ▇▇▇, counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished Company, dated the Closing Date and addressed to the Initial Purchasers at the Closing a certificate of its Chairman of the BoardPurchasers, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) The Incorporated Documents (except for the representations financial statements and warranties the notes thereto and the schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion), at the time they were filed, complied as to form in all material respects with the requirements of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; andExchange Act;
(ii) subsequent The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to the respective dates own, lease and operate its properties and to conduct its business as of which information is given described in the Final Offering Memorandum (exclusive of and any amendment or supplement thereto), neither and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify does not have a Material Adverse Effect;
(iii) Each Material Subsidiary (as hereinafter defined) is a corporation duly incorporated and validly existing and in good standing under the laws of the jurisdiction of its organization, with full corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Offering Memorandum (and any amendment or supplement thereto); each Material Subsidiary is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or to be in good standing would not have a Material Adverse Effect; and all the outstanding shares of capital stock of each of the Material Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and are owned of record by the Company nor directly, or indirectly through one of the other Material Subsidiaries, free and clear of any perfected security interest or, to such counsel's knowledge, any other lien, adverse claim, equity or other encumbrance, except as disclosed in, or contemplated by, the Offering Memorandum (or any amendment or supplement thereto);
(iv) The Company has all necessary corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to issue, sell and deliver the Debentures to be sold by it to the Initial Purchasers as provided herein, and this Agreement and the Registration Rights Agreement have each been duly authorized, executed and delivered by the Company and each constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforcement of rights to indemnity and contribution under each agreement may be limited by Federal or state securities laws or principles of public policy and except to the extent that enforceability of each agreement is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity;
(v) The Indenture has been duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, is a valid and binding agreement of the Company, enforceable in accordance with its terms, except to the extent that enforceability thereof is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity;
(vi) The Debentures have been duly and validly authorized by the Company and when executed by the Company in accordance with the Indenture and, assuming due authentication of the Debentures by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, except to the extent that enforceability thereof is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity;
(vii) The shares of Common Stock issuable upon conversion of the Debentures have been duly authorized and reserved for issuance and, when issued and delivered upon conversion of the Debentures, in accordance with the terms thereof, will be validly issued, fully paid and nonassessable and will be free of any (A) preemptive rights under the Amended and Restated Certificate of Incorporation of the Company or the Delaware General Corporation Law or (B) to the best knowledge of such counsel after reasonable inquiry, similar rights;
(viii) The authorized capital stock of the Company is as set forth under the caption "Capitalization" in the Offering Memorandum; and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Offering Memorandum under the caption "Description of Capital Stock";
(ix) All the shares of capital stock of the Company outstanding prior to the issuance of the Debentures to be issued and sold by the Company hereunder have been duly authorized and validly issued, are fully paid and nonassessable and were issued and sold in compliance with all applicable Federal and state securities laws;
(x) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company or any Subsidiary (except such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Debentures, or such as may be required to qualify the Indenture and, if necessary, the Guarantees under the 1939 Act, and such as may be required in connection with the performance by the Company of its subsidiaries has sustained obligations under the Registration Rights Agreement, as to which counsel need not express any material loss opinion) for the valid issuance and sale of the Debentures to the Initial Purchasers as contemplated by this Agreement;
(xi) Neither the offer, sale or interference delivery of the Debentures, nor the issuance of Common Stock upon conversion of the Debentures in accordance with their respective businesses the terms of the Debentures, nor the execution, delivery or properties from fireperformance by the Company of this Agreement, floodthe Registration Rights Agreement or the Indenture, hurricanethe execution, accident delivery or performance of the Guarantee Agreement by the Guarantors, nor compliance by the Company and the Guarantors with the provisions hereof or thereof, nor consummation by the Company and the Guarantors of the transactions contemplated hereby or thereby, conflicts or will conflict with or constitutes or will constitute a breach of, or a default under the certificate or articles of incorporation or bylaws or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations organizational documents of the Company or any of the Subsidiaries or any agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective properties is bound which is material to the Company and its subsidiaries, Subsidiaries taken as a wholewhole and that is an exhibit to any Incorporated Document, except or to the knowledge of such counsel will result in each case as described in the creation or contemplated by the Final Memorandum (exclusive imposition of any amendment lien, charge or supplement thereto).
(e) Subsequent to encumbrance upon any property or assets of the execution and delivery Company or any of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingSubsidiaries, nor shall will any notice have been given such action result in any violation of any intended existing law, or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changeregulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws and, in the rating accorded case of the Registration Rights Agreement, the Act, the Exchange Act and the 1939 Act), judgment, injunction, order or decree known to such counsel, and applicable to the Company, the Subsidiaries or any of their respective properties;
(xii) To the knowledge of such counsel, (A) there are no legal or governmental proceedings pending or threatened against the Company or any of the Company’s securities by Subsidiaries, or to which the Company or any “nationally recognized statistical rating organization”of the Subsidiaries, as such term is defined for purposes or any of Rule 436(g)(2) their property, are subject, which are of the type that would be required to be described in the Offering Memorandum if it were a prospectus included in a registration statement on Form S-3 under the Act.Act or in any of the Incorporated Documents but are not so described as required and (B) there are no agreements, contracts, indentures, leases or other instruments, that are of the type that would be required to be described in the Offering Memorandum if it were a prospectus included in a registration statement on Form S-3 under the Act or in any of the Incorporated Documents but are not so described as required, or that are required to be filed as an exhibit to any of the Incorporated Documents that are not so filed as required;
(fxiii) The No registration of the Debentures under the Act nor qualification of the Indenture shall have been executed and delivered by all or the parties thereto.
(g) On Guarantees under the Closing Date, 1939 Act is required for the sale of the Debentures to the Initial Purchasers shall have received as contemplated in this Agreement or for the Registration Rights Agreement executed Exempt Resales (assuming (A) that all representations and warranties made by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to Company in this Agreement will comply with and in the provisions hereof only if they Offering Memorandum are satisfactory in all material respects true, correct and accurate (including but not limited to the representations by the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to regarding the Initial Purchasers such conformed copies absence of such opinions, certificates, letters, and documents general solicitation in such quantities as the Initial Purchasers shall reasonably request.connection with the
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, discovered and disclosed to the effect that:
(i) Company prior to or on such counsel has no reason to believe Delivery Date that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or the date of such opinion, included any amendment or includes supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material fact or omitted or omits to state any fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and each of its “significant subsidiaries” information that they may reasonably request to enable them to pass upon such matters.
(c) Kirkpatrick & Lockhart LLP shall have furnished to the Initial Pur▇▇▇▇▇▇▇ ▇▇eir ▇▇▇▇▇▇▇ opinion, as defined counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in Rule 1.02(wform and substance reasonably satisfactory to the Initial Purchasers, substantially to the effect that:
(i) of Regulation S-X under the Exchange Act) have been duly organized and are The Company is validly existing as corporations a corporation in good standing under the laws of their respective jurisdictions the State of incorporation and are Florida, is duly qualified to transact do business as foreign corporations and are is in good standing as a foreign corporation in specified jurisdictions;
(ii) When the Notes are issued and delivered pursuant to this Agreement, such Notes will not be of the same class (within the meaning of Rule 144A under the laws Act) as securities of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system;
(iii) The Company has an authorized capitalization as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described set forth in the Final Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding authorized shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth Company conform in all material respects to the description thereof contained in the Final Memorandum, are owned beneficially by Offering Memorandum in the Company free and clear section entitled "Description of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsCapital Stock";
(iiiiv) The shares of Common Stock into which the statements set forth under Notes are convertible at the heading “Description initial conversion price have been duly authorized and reserved for issuance upon conversion of Notes” the Notes and, when issued upon conversion of the Notes in accordance with the Final Memorandum, insofar as such statements purport to summarize certain provisions terms of the Notes and the Indenture, provide a fair summary will not be subject to preemptive rights arising by operation of such provisionslaw or under the Company's Certificate of Incorporation or Bylaws or, to our knowledge, similar rights under the documents listed in the exhibits to the Company's latest Form 10-K and Form 10-Qs filed in respect of 2003 periods; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final MemorandumConversion Shares, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed when so issued and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable upon such conversion against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company payment therefor in accordance with the terms of the Registration Rights Agreement Note and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be duly authorized and validly issued, fully paid and nonassessable;
(v) The statements in the legal, valid and binding obligations Offering Memorandum under the captions "Description of the CompanyNotes" and "Description of Capital Stock", enforceable in accordance with their terms (subject, insofar as they purport to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) summarize the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement provisions of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this AgreementIndenture, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange NotesCommon Stock (including the Conversion Shares) fairly summarize in all material respects such provisions.
(vi) The execution, the issuance, offering delivery and sale performance of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by Indenture and the Company with Registration Rights Agreement and the other provisions issuance of this Agreement the Notes and the Conversion Shares and the consummation of the other transactions herein contemplated do hereby and thereby will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (yA) conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease loan agreement or other material agreement or instrument, known to such counsel, to which instrument filed by the Company as an exhibit to a registration statement or an Exchange Act report, (B) result in any violation of its significant subsidiaries is a party the provisions of the certificate of incorporation or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws bylaws of the Company or (C) result in any violation of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation known to such counsel of any court or other governmental authority agency or any arbitrator known to such counsel and applicable to body having jurisdiction over the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company United States or any of its subsidiaries is properties or assets that would in the case of (A) and (C) above result in a party Material Adverse Effect; and, except as may be required by the securities or to which the property "blue sky" laws of any state of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required United States in connection with the sale of the Notes to Notes, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the Initial Purchasers as contemplated by execution and delivery of this Agreement and the Final Memorandum Indenture by the Company and the issuance of the Notes and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby (except that we give no opinion as to the registration of the Notes and the Conversion Shares under the Act and the qualification of the Indenture under the Trust Indenture Act other than as set forth in subparagraph (vii) below);
(vii) No registration of the Notes or the Conversion Shares under the Act, and no qualification of the Indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Notes or in connection with the initial resale conversion of the Notes into Conversion Shares, in each case, in the manner contemplated by the Offering Memorandum, this Agreement and the Indenture;
(viii) The statements in the Offering Memorandum under the caption "United States Federal Income Tax Consequences", insofar as they purport to constitute summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects;
(ix) The Company is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(x) The Company has all necessary corporate power and authority to execute and deliver each of the Operative Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Notes and the Conversion Shares to the Initial Purchasers;
(xi) This Agreement has been duly authorized, executed and delivered by the Company;
(xii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms;
(xiii) The Notes have been duly authorized by the Company and when duly executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers Purchasers, will be duly and validly issued and outstanding, and will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with Section 8 of this Agreementtheir terms; and
(xiv) The Registration Rights Agreement has been duly authorized, executed and prior to delivered by the commencement Company and constitutes a valid binding agreement of the Exchange Offer (as defined Company, enforceable against it in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection accordance with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereofits terms. In rendering any such opinion, such counsel may relyrecite customary assumptions, as qualifications and limitations and may state that its opinion is limited to matters of fact, to governed by the extent such counsel deems proper, on certificates of responsible officers federal laws of the Company and public officials andUnited States of America, as to matters involving the application of laws of any jurisdiction other than the State of New York or and the United States or the General Florida Business Corporation Law of the State of Delaware, Act. Such counsel shall also have furnished to the extent satisfactory in form and scope to counsel for the Initial PurchasersPurchasers a written statement, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered addressed to the Initial Purchasers and dated such Delivery Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel for participated in conferences with officers and other representatives of the Company, the Company's independent public accountants, the Initial Purchasers covering matters reasonably requested by and their counsel, at which the Initial Purchasers. References contents of the Offering Memorandum were discussed, and while such counsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, no facts have come to the Final attention of such counsel that lead it to believe that the Offering Memorandum (other than the financial statements, financial and statistical data and supporting schedules as to which such counsel shall make no statement), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in this subsection (a) shall include any amendment or supplement thereto prepared order to make the statements therein, in accordance with light of the provisions of this Agreement at the Closing Datecircumstances under which they were made, not misleading.
(bd) The Cleary, Gottlieb, Steen & Hamilton shall have furnished to the Initial Purchasers shall have received a legal opinion from the▇▇ ▇▇▇▇itt▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPon, as counsel for to the Initial Purchasers, dated the Closing Date, with respect addressed to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering and dated such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(de) At the time of execution of this Agreement, the Initial Purchasers shall have received from Ernst & Young LLP a letter, in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings.
(f) With respect to the letter of Ernst & Young LLP delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing on such Delivery Date a certificate of its Chairman certificate, dated such Delivery Date and delivered on behalf of the Board, Company by its President chief executive officer or its Chief Executive Officer chief financial officer, in form and its Chief Financial Officer substance satisfactory to the Initial Purchasers Purchasers, to the effect that:
(i) the The representations and warranties of the Company in this Agreement Section 1 are true and correct as if made on and as of the Closing such Delivery Date; and the Company has performed complied in all covenants and material respects with all its agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; andcontained herein;
(ii) subsequent Such officer has examined the Offering Memorandum and, in such officer's opinion the Offering Memorandum, as of its date and as of the Delivery Date, did not and does not include any untrue statement of a material fact and did not and does not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(h) The Indenture, in agreed form consistent with the Offering Memorandum disclosures, shall have been duly executed and delivered by the Company and the Trustee and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(i) The Company and the Initial Purchasers shall have executed and delivered the Registration Rights Agreement, which shall have terms and provisions consistent with and substantially similar to those described in the Offering Memorandum (in form and substance satisfactory to the respective dates as of which information is given Company and the Initial Purchasers) and the Registration Rights Agreement shall be in full force and effect.
(j) The NASD shall have accepted the Final Memorandum Notes for trading on PORTAL.
(exclusive of any amendment or supplement thereto), neither i) Neither the Company nor any of its subsidiaries has shall have sustained since the date of the latest audited financial statements included in the Offering Memorandum any material loss or interference with their respective businesses or properties its business from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, order or decree, except as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto) and (ii) since such date there has shall not have been any materially adverse change (including, without limitation, a change in management the capital stock or control)long-term debt of the Company or any of its subsidiaries other than certain mergers of wholly owned subsidiaries of the Company with or into wholly owned subsidiaries of the Company and options and shares issued pursuant to employee benefit or savings plans, qualified stock option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants, or any change, or any development involving a prospective materially adverse change, in or affecting the condition (financial or otherwise), management, earnings, properties, business affairs or business prospectsfinancial position, stockholders’ equity, net worth ' equity or results of operations of the Company or any of and its subsidiaries, subsidiaries taken as a whole, except otherwise than as set forth or contemplated in each the Offering Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case as described in clause (i) or (ii), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Notes being delivered on such Delivery Date on the terms and in the manner contemplated by in the Final Offering Memorandum (exclusive of any amendment or supplement thereto).
(el) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingof the following:
(i) trading in securities generally on the New York Stock Exchange, nor the American Stock Exchange or the NASDAQ, or trading in any securities of the Company on any exchange shall any notice have been given suspended or minimum prices shall have been established on any such exchange or market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction;
(ii) a banking moratorium shall have been declared by United States federal or New York State authorities;
(iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States which has a material adverse effect on the financial markets so as to make it in the judgment of Lehman Brothers, impracticable or inadvisable to proceed with th▇ offering or delivery of the Notes as contemplated in the Offering Memorandum (exclusive of any intended amendment or potential downgrading supplement thereto); or
(iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of any review for a possible change that does not indicate international conditions on the direction of financial markets in the possible changeUnited States shall be such) as to make it, in the rating accorded any judgment of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish , impracticable or inadvisable to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.proceed w
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes Securities shall, be subject, in the Initial Purchasers’ its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from ▇▇the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇ Chance US & Bird LLP, counsel for the CompanyIssuers and Guarantors, dated in form and substance reasonably satisfactory to counsel for the Closing DateInitial Purchaser, and subject to customary exceptions, assumptions and qualifications, substantially to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light Each of the circumstances under which they were made, not misleading.
(ii) Issuers and the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are Guarantors is validly existing as corporations and in good standing under the laws of their its respective jurisdictions jurisdiction of incorporation or formation, as the case may be, and are duly qualified to transact business as foreign corporations and are in good standing under the laws of has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate their respective own its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum, . Each of the Issuers and the Company has corporate power Guarantors is duly qualified to enter into this Agreementdo business as a foreign corporation, limited liability company or limited partnership, as the Registration Rights Agreement and the Indenture and case may be, in all jurisdictions set forth on a schedule attached to carry out all the terms and provisions hereof and thereof and such opinion.
(ii) Each of the Notes to be carried out by it; all of Issuers has the authorized, issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise capitalization set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;.
(iii) The Issuers and the statements set forth Guarantors have all requisite corporate power and authority to execute, deliver and perform each of its obligations under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; the Security Documents (other than the Mortgages), the Securities, the Exchange Securities and the statements set forth Private Exchange Securities; the Indenture meets the requirements for qualification under the heading “Certain Federal Income Tax Consequences” in TIA; the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement Indenture has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly validly authorized by the Company Issuers and the Guarantors and, when duly executed and delivered by the Company Issuers and each Guarantor (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the Indenture will be a legal, valid and legally binding agreement of the CompanyIssuers and each Guarantor, enforceable against the Company Issuers and each Guarantor in accordance with its terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generally from time to time in effect). The Indenture meets and (ii) general principles of equity and the requirements for qualification under discretion of the TIAcourt before which any proceeding therefor may be brought.
(viiv) The Securities are in the Notes form contemplated by the Indenture. The Securities have each been duly and validly authorized by all necessary corporate action of the Company Issuers and, on and as of the Closing Date, the Notes will have been when duly executed and delivered by the Company andIssuers and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, assuming execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Securities by the TrusteeTrustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the CompanyIssuers, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder , and enforceable against the Issuers in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of securities equity and the discretion of the Company has court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;proceeding therefor may be brought.
(viiv) the The Exchange Notes Securities and the Private Exchange Notes Securities have been duly and validly authorized by the CompanyIssuers, and when the Exchange Notes Securities and the Private Exchange Notes Securities are duly executed and delivered by the Company Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes Securities and the Private Exchange Notes Securities by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the CompanyIssuers, entitled to the benefits of the Indenture, and enforceable against the Issuers in accordance with their terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generally from time to time in effect)and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(viiivi) Each of the Company has Issuers and the Guarantors have all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the Company Issuers and the Guarantors and, when duly executed and delivered by the Company Issuers and the Guarantors (assuming due authorization, execution and delivery thereof by the Initial PurchasersPurchaser), will be a legal, constitute the valid and legally binding agreement of the CompanyIssuers and the Guarantors, enforceable against the Company Issuers in accordance with its terms terms, except that (subject, as A) the enforcement thereof may be subject to enforcement of remedies, to applicable (i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generally from time to time in effect and except that (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(vii) Each of the Issuers have all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Issuers of the transactions contemplated hereby have been duly and validly authorized by the Issuers. This Agreement has been duly executed and delivered by the Issuers.
(viii) The Indenture, the Securities, the Security Documents and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum.
(ix) the execution The execution, delivery and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not hereby and thereby (x) require including, without limitation, the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer issuance and sale of the Notes by Securities to the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (yPurchaser) will not conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms and or provisions ofof those contracts set forth on a schedule attached to such opinion, except for any such conflict, breach, violation, default or event that would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or certificate of formation, as the case may be, or constitute a default underbylaws, any indenture, mortgage, deed of trust, lease or other material operating agreement or instrumentlimited partnership agreement, known to such counselas the case may be, to which of the Company Issuers or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are boundGuarantors, or (iii) (assuming compliance with all applicable state securities or “Blue Sky” laws and assuming the charter documents or by-laws accuracy of the Company or representations and warranties of the Initial Purchaser in Section 8 hereof) any of its significant subsidiariesstatute, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and to be normally applicable to transactions of the Company type described herein, except for any such conflict, breach or its significant subsidiaries;violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(x) No consent, approval, authorization or order of any governmental authority is required for the Company is not an “investment company” and, after giving effect issuance and sale by the Issuers of the Securities to the Offering Initial Purchaser or the consummation by the Issuers of the Notes and the application of the proceeds therefromother transactions contemplated hereby, will not except such as may be an “investment company”required under Blue Sky laws, as to which such term is defined in the 1940 Act; andcounsel need express no opinion, and those which have previously been obtained.
(xi) To the knowledge of such counsel does not know of any counsel, there are no legal or governmental proceedings pending involving or threatened to which affecting the Company Issuers or the Guarantors or any of its subsidiaries is a party their respective properties or to which the property of the Company or any of its subsidiaries is subject assets that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or Memorandum, nor, to the knowledge of such counsel, are there any statutes, regulations, material contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with None of the Company’s taxable year ended December 31Issuers or the Guarantors is, 1998, or immediately after the Company was organized sale of the Securities to be sold hereunder and has operated the application of the proceeds from such sale (as described in conformity with the requirements for qualification as a real estate investment trust (Final Memorandum under the caption “REITUse of Proceeds”) under will be, an “investment company” as such term is defined in the Code, and the Company’s present and proposed method Investment Company Act of operation1940, as represented by the Company, will permit the Company to continue to so qualifyamended.
(xiii) No registration under the Act of the Notes Securities is required in connection with the sale of the Notes Securities to the Initial Purchasers Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes Securities by the Initial Purchasers Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ Purchaser’s representations in Section 8 and those of the Company Issuers contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes Securities to the Initial Purchasers Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to .
(xiv) Neither the extent such counsel deems proper, on certificates of responsible officers consummation of the Company and public officials andtransactions contemplated by this Agreement nor the sale, as to matters involving the application of laws of any jurisdiction other than the State of New York issuance, execution or the United States or the General Corporation Law delivery of the State Securities will violate Regulation T, U or X of Delawarethe Board of Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, to ▇▇▇▇▇▇ & Bird LLP shall additionally state that it has participated in conferences with officers and other representatives of the extent satisfactory in form Issuers and scope to the Guarantors, representatives of the independent public accountants for the Issuers and the Guarantors, representatives of the Initial Purchaser and counsel for the Initial PurchasersPurchaser, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(ix)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, 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 contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Issuers’ books and records included in the Final Memorandum). The opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ & Bird LLP described in this Section shall be delivered rendered to the Initial Purchasers Purchaser at the request of the Issuers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasersshall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from the opinion, in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing DatePurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP the Independent Accountants a comfort letter or letters dated, respectively, dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company Issuers and the Guarantors contained in this Agreement are shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Issuers’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers and the Company has Guarantors shall have performed all covenants and agreements and satisfied all conditions on its their part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) subsequent to the respective dates , except as of which information is given described in the Final Memorandum (exclusive of any amendment or supplement theretothereto after the date hereof), neither subsequent to the Company nor date of the most recent financial statements in such Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers or any of its subsidiaries has the Guarantors shall have sustained any material loss or interference with their respective businesses respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute dispute, slow down or work stoppage or from any legal or governmental proceeding, and there has not been any materially adverse change (includingorder or decree, without limitationwhich loss or interference, a change in management individually or control), or development involving a prospective materially adverse change, in the condition aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(financial g) The Initial Purchaser shall have received certificates of each Issuer, dated the Closing Date, signed on behalf of each Issuer by its President or otherwise)any Senior Vice President and the Chief Financial Officer, management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results to the effect that
(i) the representations and warranties of operations each Issuer contained in this Agreement are true and correct on and as of the Company date hereof and on and as of the Closing Date, and each Issuer has performed all covenants and agreements and satisfied all conditions on its part to be performed or any satisfied hereunder at or prior to the Closing Date;
(ii) since the date of its subsidiaries, taken as a whole, except the most recent financial statements in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement theretothereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(gh) On the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Company Issuers and each Guarantor and such agreement shall be in full force and effect at all times from and after the Closing Date.
(hi) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers Purchaser shall have received such further certificates, documents a copy of a certificate evidencing the insurance requirements (i) in substantially the form commonly known as “▇▇▇▇▇ 27” or other information as they may have reasonably requested from the Company. All opinions, certificates, letters otherwise in form and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects substance acceptable to the Initial Purchasers Collateral Agent that (A) provides that the insurance has been issued, is in full force and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letterseffect, and documents in such quantities as conveys all the Initial Purchasers shall reasonably request.rights and privileges afforded under the insurance policies, (B) provides an unequivoca
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers Purchaser hereunder are subject to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to (i) the accuracy of the representations and warranties of the Company contained herein as of on the date hereof (if applicable) and as of each at the Closing DateTime, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to (ii) the performance by the Company Sponsor of its covenants and agreements obligations hereunder and to (iii) compliance with the following additional conditionsconditions precedent no later than on [•]:
(a) On The Sponsor shall furnish to the Initial Purchaser at the Closing DateTime an opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Sponsor, addressed to the Initial Purchasers Purchaser, and dated the Closing Time, in substantially the form set forth in Exhibit A attached hereto.
(b) The Sponsor shall have received a legal furnish to the Initial Purchaser at the Closing Time an opinion from of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Chance US LLP& Finger, P.A. , counsel for the CompanySponsor, addressed to the Initial Purchaser, and dated the Closing DateTime, in substantially the form set forth in Exhibit B attached hereto.
(c) The Registration Statement shall have been declared effective.
(d) Prior to the effect that:
Closing Time, (i) such counsel has no reason stop order with respect to believe that the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act, (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinionii) the Final Memorandum, as of its date or the date of such opinion, included or includes any Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omitted or omits omit to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading and (iii) the Prospectus and all amendments or supplements thereto shall 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 are made, not misleading.
(iie) Between the Company and each time of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation Closing Time, no material adverse change or any development involving a prospective material adverse change in the management or financial condition of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration Sponsor shall occur or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumbecome known.
(xiif) commencing with The Sponsor will, at the CompanyClosing Time, deliver to the Initial Purchaser an officer’s taxable year ended December 31, 1998, certificate in the Company was organized and has operated in conformity with the requirements for qualification form attached as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualifyExhibit C hereto.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(bg) The Initial Purchasers Sponsor shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer Purchaser such other documents and its Chief Financial Officer satisfactory certificates as to the Initial Purchasers to accuracy and completeness of any statement in the effect that:
(i) Registration Statement and the representations and warranties of the Company in this Agreement are true and correct as if made on and Prospectus as of the Closing Date; and Time, as the Company has performed all covenants and agreements and satisfied all conditions Initial Purchaser may reasonably request.
(h) The Shares shall have been approved for listing on its part the Exchange, subject to be performed or satisfied notice of issuance at or prior to the Closing Date; and
(ii) subsequent to Time. In the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change event that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes foregoing conditions precedent have not been met or waived within the time indicated in the opening paragraph of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Datesection 6 hereof, the Initial Purchasers shall have received Purchaser may in its sole discretion elect to surrender the Registration Rights Agreement executed Purchased Shares to the Trust for redemption in compliance with the provisions of the Trust Agreement, and upon receipt by the Company Initial Purchaser of the Initial Deposit and such agreement any expenses payable to the Initial Purchaser pursuant to section 5 of this Agreement, this Agreement shall be in full of no further force and effect at and all times from obligations of the parties hereunder shall be discharged; provided, that obligations of the parties arising under sections 4(k), 5 and after 9 shall survive the Closing Datetermination of this Agreement.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Initial Purchaser Agreement (JPM XF Physical Copper Trust)
Conditions of the Initial Purchasers’ Obligations. The obligation respective obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on the Closing Date (as if made again on and as of such date), of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its covenants and agreements hereunder their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the Initial Purchasers The Offering Memorandum shall have received been printed and copies made available to you not later than 6:00 p.m., New York City time, on the Business Day following the date of this Agreement, or at such later date and time as you may approve in writing.
(b) No Initial Purchaser shall have discovered and disclosed to the Company on or before such Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a legal fact which, in the opinion from of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the CompanyInitial Purchasers, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a is material fact or omitted or omits to state any a fact which, in the opinion of such counsel, is material fact and is required to be stated therein or is necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(iic) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company and the Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P. shall have furnished to the Initial Purchasers its written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated such Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) The Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) Guarantors have been duly organized incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and incorporation, are duly qualified to transact do business as foreign corporations and are in good standing under as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the laws conduct of all other jurisdictions their respective businesses requires such qualification, except where such counsel has been advised that the failure to so register or qualify or to be so qualified in good standing would amount to not have a material liability or disability to the Company Material Adverse Effect, and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full all power and authority necessary to own, lease and operate own or hold their respective properties and assets and conduct their respective the businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, which they are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsengaged;
(iiiii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the This Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company andauthorized, when duly executed and delivered by the Company and each of the Guarantors and (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be Initial Purchasers) constitutes a legal, valid and legally binding agreement of the CompanyCompany and each of the Guarantors, enforceable against the Company each of them in accordance with its terms (subjectterms, except as to enforcement of remediessuch enforceability may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and other similar laws relating to or other laws affecting creditors’ ' rights generally from time to time in effect). and by general equitable principles;
(iii) The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have has been duly authorized by all necessary corporate action of the Company andauthorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, and each of the Guarantors and (assuming due authentication authentication, execution and delivery by the Trustee, will be the legal, ) constitutes a valid and legally binding agreement of the Company and each of the Guarantors, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and by general equitable principles;
(iv) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors and (assuming due execution and delivery by the Initial Purchasers) constitutes a valid and legally binding agreement of the Company and each of the Guarantors, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and by general equitable principles;
(v) The Series A Notes have been duly authorized, executed, authenticated, issued and delivered by the Company as provided in the Indenture, and constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised Indenture and enforceable in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or waived to require the Company to register the offer or sale of any securities owned affecting creditors' rights generally and by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreementgeneral equitable principles;
(viivi) the Exchange Notes and the Private Exchange The Series B Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed executed, authenticated, issued and delivered by the Company as provided in the Indenture, will constitute valid and legally binding obligations of the Company, entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and by general equitable principles;
(vii) When the terms Series A Notes are issued and delivered, such Series A Notes will not be of the same class (within the meaning of Rule 144A under the Act) as securities of the Company or any Guarantor that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system;
(viii) No registration under the Act of the Series A Notes is required for the sale of the Series A Notes to you as contemplated hereby or for the Exempt Resales, assuming (i) that the Eligible Purchasers who buy the Series A Notes in the Exempt Resales are QIBs or persons who are neither (a) U.S. Persons (as defined in Rule 902 under the Act) nor (b) persons who purchase the Series A Notes for the benefit of such U.S. persons and (ii) the accuracy of your representations and those of the Company regarding the absence of general solicitation in connection with the Exempt Resales contained herein;
(ix) Each of the Preliminary Offering Memorandum and the Offering Memorandum, as of its date, and each amendment or supplement thereto, as of its date (except for the financial statements and the notes thereto and schedules and other financial and accounting data included therein, as to which no opinion need be expressed), complied with the requirements of Rule 144A of the Act;
(x) The Company has an authorized capitalization as set forth in the Offering Memorandum, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Offering Memorandum;
(xi) The Indenture and the Notes conform in all material respects to the descriptions thereof contained in the Offering Memorandum;
(xii) Other than as contained in (i) the Subordinated Convertible Notes (as defined in the Indenture), (ii) stock options issued to employees and directors and (iii) warrants that were issued in connection with the Company's acquisition of WellTech, Inc., there are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any securities pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel;
(xiii) The statements contained in the Offering Memorandum under the caption "Certain United States Federal Income Tax Consequences", insofar as they describe federal statutes, rules and regulations, constitute a fair summary thereof;
(xiv) The issue and sale of the Series A Notes being delivered on the Closing Date by the Company and the compliance by the Company with all of the provisions of this Agreement, the Registration Rights Agreement and the Indenture (assuming Indenture, the due authorization, execution and delivery compliance by the Guarantors with all of the Indenture by the Trustee and due authentication and delivery provisions of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Registration Rights Agreement and the consummation of the other transactions herein contemplated do hereby and thereby will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a material breach or violation of any of the terms and or provisions of, or constitute a material default under, any indenture, mortgage, deed of trust, lease loan agreement or other material agreement or instrument, instrument known to such counsel, counsel to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries is bound or to which any of the property or assets of the Company or any of their respective properties are boundits subsidiaries is subject, or nor will such actions result in any violation of the provisions of the charter documents or by-laws of the Company or any of its significant subsidiaries, subsidiaries or any statute or any judgment, decree, order, rule or regulation known to such counsel of any court or other governmental authority agency or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which body having jurisdiction over the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to their properties or assets; and, except for the Act that are not described in registration of the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration Series B Notes under the Act of and such consents, approvals, authorizations, registrations or qualifications as may be required under the Notes is required Exchange Act and applicable state securities laws in connection with the sale purchase and distribution of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Series A Notes by the Initial Purchasers in accordance with Section 8 no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) Agreement or the effectiveness Indenture by the Company, the execution, delivery and performance of this Agreement, the Shelf Registration Statement (as defined in Indenture and the Registration Rights Agreement)Agreement and the consummation of the transactions contemplated hereby and thereby; and
(xv) To the best of such counsel's knowledge, there are no contracts, agreements or understandings between the Indenture is not required Company and any person granting such person the right to be qualified under require the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated Company to file a registration statement under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those with respect to any securities of the Company contained owned or to be owned by such person or to require the Company to include such securities in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes registered pursuant to the Initial Purchasers and the initial resale thereof and (iii) the due performance Registration Statement or in any other securities being registered pursuant to any other registration statement filed by the Initial Purchasers of Company under the agreements set forth in Section 8 hereofAct. In rendering any such opinion, such counsel may rely, as (i) state that their opinion is limited to matters governed by the Federal laws of factthe United States of America and the laws of the States of New York, Texas, Maryland and Delaware, and that such counsel is not admitted in Colorado, Kansas, Louisiana, Michigan, Nevada, New Mexico, Oklahoma and Wyoming, (ii) rely (to the extent such counsel deems proper, on certificates of responsible officers of the Company proper and public officials andspecifies in their opinion), as to matters involving the application of the laws of any jurisdiction other than the State of Colorado, Kansas, Louisiana, Michigan, Nevada, New York or the United States or the General Corporation Law Mexico, Oklahoma and Wyoming upon a review of the relevant statutory law of such states, the Company and Guarantor board of directors and shareholder minutes, certificates provided by officers of the Company and the Guarantors and certificates or comparable documents issued by the Secretary of State and other public officials of Delawaresuch states, to the extent satisfactory in form and scope to PROVIDED that such counsel for shall state that they believe that both the Initial Purchasers, Purchasers and they are justified in relying upon such statutes and certificates and (iii) rely as to matters involving the application of the laws of Maryland upon the opinion of ▇▇▇▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP & ▇▇▇▇▇, P.C., special Maryland counsel to the Company. Such counsel shall be delivered also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by dated such Closing Date, in form and substance satisfactory to the Initial Purchasers. References , to the Final Memorandum effect that (x) such counsel has acted as counsel to the Company on a regular basis (although the Company is also represented by its General Counsel and certain other matters, by other outside counsel), has acted as counsel to the Company in this subsection (a) shall include any amendment or supplement thereto prepared connection with previous acquisitions by the Company and financing transactions and has acted as counsel to the Company in accordance connection with the provisions preparation of this Agreement at the Closing DateOffering Memorandum, and (y) based on the foregoing, no facts have come to the attention of such counsel which lead it to believe that, as of its date and as of the date of such opinion that the Offering Memorandum contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The foregoing opinion and statement may be qualified by a statement to the effect that such counsel does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum except for the statements made in the Offering Memorandum under the caption "CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES", insofar as such statements relate to the Notes and concern legal matters; and it being understood that such counsel need express no belief as to the financial statements or other financial data included in the Offering Memorandum.
(be) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel for the Initial Purchasers, such opinion or opinions, dated the such Closing Date, with respect to certain legal matters relating to this Agreement the issuance and such sale of the Series A Notes, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and the Company shall have received and may rely upon furnished to such certificates and other counsel such documents and information as it may they reasonably request for the purpose of enabling them to pass upon such matters.
(cf) The At the time of execution of this Agreement, the Initial Purchasers shall have received from PricewaterhouseCoopers KPMG LLP a letter or letters dated, respectively, the date hereof and the Closing Dateletter, in form and substance satisfactory to counsel for the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three days before the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to initial purchasers in connection with securities offerings.
(dg) With respect to the letter of KPMG LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Closing Date (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than three days before the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(h) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the a certificate, dated such Closing a certificate Date, of its Chairman of the Board, its President or its Chief Executive Officer a Vice President and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect chief financial officer stating that:
(i) the representations The representations, warranties and warranties agreements of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given Guarantors in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they Section 1 are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.tr
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Squire, Sand▇▇▇ Chance US LLP& ▇emp▇▇▇ ▇.▇.P., counsel for the Company, in form and substance satisfactory to counsel to the Initial Purchasers, dated the Closing Date, substantially to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the The Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have Subsidiaries has been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions a state within the United States of incorporation America, is validly existing and are duly qualified to transact business as foreign corporations and are is in good standing as a corporation under the laws of its jurisdiction of incorporation, with all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate their respective its properties and assets conduct its business as now conducted, and conduct their respective businesses as described in the Final Memorandum, ; each of the Company and the Subsidiaries is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions where, to the knowledge of such counsel, the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect.
(ii) The Company has corporate power the authorized and, to enter into this Agreementthe knowledge of such counsel, issued capital stock set forth in the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; Final Memorandum. The Company owns all of the issued and outstanding capital stock of the Subsidiaries. All of the outstanding shares of capital stock of each the Company and the Subsidiaries as of the Company’s significant subsidiaries, except as otherwise set forth in the Final MemorandumClosing Date are duly authorized and validly issued, are owned beneficially by the Company free fully paid and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;nonassessable and were not issued
(iii) the statements set forth The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the heading “Description of Notes” . The Notes, when issued, will be in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and form contemplated by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement . The Notes have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly validly authorized, executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when authenticated by the Notes Trustee in accordance with the provisions of the Indenture and when delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Company, will be entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law).
(iv) The Global Note (as such term is defined in the Indenture) is in the form contemplated by the Indenture. The Global Note has been duly and validly authorized, executed and delivered by the Company (assuming the due authorizationand, execution and delivery thereof when authenticated by the Trustee), Notes Trustee in accordance with the provisions of the Indenture and when delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Company, will be entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a legalproceeding in equity or at law).
(v) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture meets the requirements for qualification under the TIA. The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms (subjectterms, except as to enforcement of remediesthe enforceability thereof may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors’ ' rights generally from time to time and by general equitable principles (regardless of whether the issue of enforceability is considered in effecta proceeding in equity or at law). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are have been duly executed and delivered by the Company and authenticated by the Notes Trustee in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms (subjectterms, except as to enforcement of remediesthe enforceability thereof may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors’ ' rights generally from time to time and by general equitable principles (regardless of whether the issue of enforceability is considered in effecta proceeding in equity or at law).;
(viiivii) the The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the . The Registration Rights Agreement has been duly authorized by the Company andand validly authorized, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be constitutes a legal, valid and legally binding agreement of the Company, Company enforceable against the Company in accordance with its terms terms, except (subjectA) as the enforceability thereof may be limited by bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors’ ' rights generally from time to time and by general equitable principles (regardless of whether the issue of enforceability is considered in effect a proceeding in equity or at law), and except (B) that any rights to indemnity or contribution thereunder may be limited by federal and or state securities laws and or public policy considerations.
(viii) Each of the Subsidiaries has all requisite corporate power and authority to execute, deliver and perform its obligations under its respective Subsidiary Guarantee. Each Subsidiary Guarantee has been duly and validly authorized, executed and delivered by the applicable Subsidiary and will constitute a valid and legally binding agreement of such Subsidiary enforceable against such Subsidiary in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law).
(ix) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the execution transactions contemplated hereby. This Agreement has been duly and delivery validly authorized, executed and delivered by the Company ofCompany.
(x) No consent, and approval, authorization or order of any court or governmental agency or body or, to the knowledge of such counsel, third party is required for the execution, delivery or performance by the Company or any Subsidiary of its obligations under, this Agreement, the Registration Rights Agreement, Agreement or the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers consummation by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation or any of the other Subsidiaries of the transactions herein contemplated do not (x) require hereby or thereby that are to be completed prior to or on the consent, approval, authorization, registration or qualification of or with any governmental authoritydate hereof, except such as have been obtained or made (disclosed in the Final Memorandum and specified in such opinion) or such as may be required by the under state securities or "Blue Sky Sky" laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer purchase and sale resale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws Purchasers. None of the Company or any of the Subsidiaries is (i) in violation of its significant subsidiariescertificate of incorporation or bylaws (or similar organizational document), (ii) in breach or violation of any statute or any statute, judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company any of them or its significant subsidiaries;
any of their respective properties or assets, or (xiii) the Company is not an “investment company” andin breach of or in default under (nor has any event occurred which, after giving effect to the Offering with notice or passage of time or both, would constitute a default under) or in violation of any of the Notes and the application terms or provisions of the proceeds therefrom, will not be an “investment company”, as any Contracts known to such term is defined in the 1940 Act; andcounsel.
(xi) The execution, delivery and performance by the Company and the Subsidiaries of this Agreement, the Indenture, the Registration Rights Agreement and the Subsidiary Guarantees and the consummation
(xii) To the knowledge of such counsel does counsel, there is not know of any legal or governmental proceedings pending or threatened threatened, any action, suit, proceeding, inquiry, investigation or legislative mandate to which the Company or any of its subsidiaries the Subsidiaries is a party party, or to which the property or assets of the Company or any of its subsidiaries is subject that the Subsidiaries are subject, before or brought by any court, arbitrator or governmental agency or body which are reasonably likely to, individually or in the aggregate, have a Material Adverse Effect or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Preliminary Memorandum and the Final Memorandum.
(xiii) Neither the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Notes will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System, in each case as in effect, or as the same may hereafter be in effect, on the date hereof.
(xiv) To the knowledge of such counsel, there are no legal or governmental proceedings involving or affecting the Company or any Subsidiary or any of their respective properties or assets which would be required to be described in a prospectus forming part of a registration statement filed with the Commission pursuant to the Act that are not described in the Preliminary Memorandum or the Final Memorandum.
(xv) Neither the Company nor any of the Subsidiaries is or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds from such sale (as described in the Final Memorandum under the caption "Use of Proceeds") will be (i) an "investment company" or any statutes"promoter" or principal "underwriter" for an "investment company" or a company controlled by an investment company within the meaning of the Investment Company Act of 1940, regulationsas amended, contracts and the rules and regulations thereunder or other documents that would be required to be described (ii) a "holding company" or a "subsidiary company" of a holding company or an "affiliate" thereof within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(xvi) The Notes, the Exchange Notes, the Registration Rights Agreement and the Indenture will conform in a prospectus pursuant all material respects to the Act that are not described or incorporated descriptions thereof in the Final Memorandum.
(xiixvii) commencing with To the Company’s taxable year ended December 31knowledge of such counsel, 1998, no holder of securities of the Company was organized and has operated in conformity with nor any of the Subsidiaries will be entitled to have such securities registered under the registration statements required to be filed by the Company pursuant to the Registration Rights Agreement other than as expressly permitted thereby.
(xviii) The Notes satisfy the eligibility requirements for qualification as a real estate investment trust (“REIT”of Rule 144A(d)(3) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualifyAct.
(xiiixix) The statements in the Final Memorandum under the caption "Description of Capital Stock", and "Description of Notes", insofar as they describe the provisions of the documents and instruments therein described, constitute fair summaries thereof and are accurate in all material respects;
(xx) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of the manner contemplated by this Agreement, Agreement and the Final Memorandum and prior to the commencement of the Notes Exchange Offer (as defined in and the Registration Rights Agreement) Debenture Exchange Offer or the effectiveness of the Shelf Registration Statement or the Debenture Shelf Registration Statement (as defined in the Registration Rights Agreement or the Debenture Registration Rights Agreement, as the case may be), it being understood that no opinion is expressed as to any subsequent resale of the Indenture is not required Notes, and the Indenture
(xxi) The Company has all requisite corporate power and authority to be qualified execute, deliver and perform its obligations under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale Acquisition Agreements. Each of the Notes is made in an offshore transaction as defined in Regulation SAcquisition Agreements has been duly and validly authorized, (ii) executed and delivered by the accuracy of the Initial Purchasers’ representations in Section 8 Company and those constitutes a valid and legally binding agreement of the Company contained enforceable against the Company in this Agreement regarding accordance with its terms, except as the absence enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a general solicitation proceeding in connection with equity or at law).
(xxii) To the sale knowledge of such Notes counsel, the Company and each of the Subsidiaries possesses all Permits presently required or necessary to own or lease, as the Initial Purchasers case may be, and to operate its respective properties and to carry on its respective businesses as now or proposed to be conducted as described in the Preliminary Memorandum and the initial resale thereof and (iii) the due performance by the Initial Purchasers Final Memorandum, each of the agreements set forth Company and the Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in Section 8 hereofany other material impairment of the rights of the holder of any such Permit, and none of the Company or the Subsidiaries has received any notice of any proceeding relating to revocation or modification of any such Permit, except as described in the Final Memorandum. In rendering any such opinion, such counsel may rely, as to matters of fact, (A) state that such counsel's opinion is limited to the extent such counsel deems proper, on certificates federal law of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or and the laws of the States of Ohio and New York and the General Corporation Law of the State of Delaware, In addition to the extent satisfactory foregoing, such counsel shall state that is has participated in conferences with directors, executive officers and other representatives of the Company, representatives of the Company's independent public accountants, at which conferences the contents of the Final Memorandum and related matters were discussed, and although such counsel has not independently verified and has not passed upon or assumed any responsibility for the accuracy, completeness or fairness of the statements contained in such documents, no facts have come to such counsel's attention to lead it to believe that the Final Memorandum and any further amendments or supplements thereto as of their respective dates and on the date of such opinion letter contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any view with respect to the financial statements and related notes, the financial statement schedules and the other financial, statistical and accounting data included in the Final Memorandum). The opinion of Squire, Sand▇▇▇ & ▇emp▇▇▇ ▇.▇.P. described in this Section shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(b) On the Closing Date, the Initial Purchasers shall have received opinions, in form and scope substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of White & Case and Snel▇ & ▇ilm▇▇ ▇.▇.P. counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, White & Case and Snel▇ & ▇▇▇▇ilm▇▇ ▇.▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP .P. shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.rea
Appears in 1 contract
Sources: Purchase Agreement (American Architectural Products Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, Purchaser hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company Washington Mutual Entities contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements hereunder obligations hereunder, and to the satisfaction of each of the following additional conditionsconditions and agreements:
(a) On the Closing Date, the The Initial Purchasers Purchaser shall not have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, discovered and disclosed to the effect that:
(i) Washington Mutual Entities prior to or on such counsel has no reason to believe Delivery Date that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or the date of such opinion, included any amendment or includes supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchaser, is material fact or omitted or omits to state any a fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iib) All corporate and trust proceedings, as appropriate, and other legal matters incident to the authorization, form and validity of the Operative Documents (including the global certificates for the Unit Securities), the Unit Securities and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents (including the global certificates for the Unit Securities), the Unit Securities and the transactions contemplated thereby and the Offering Memorandum shall be satisfactory in all material respects to counsel to the Initial Purchaser; and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Company, shall have furnished to the Initial Purchaser its written opinion, as counsel to the Company, addressed to the Initial Purchaser and dated such Delivery Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that:
(i) The Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) Significant Subsidiaries have been duly organized incorporated and are validly existing as corporations or depository institutions in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of have all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority necessary to own, lease and operate own or hold their respective properties and assets conduct the businesses in which they are engaged;
(ii) The Company and conduct their respective businesses the Trust has an authorized capitalization as described set forth in the Final Offering Memorandum, ; and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each Significant Subsidiary of the Company’s significant subsidiaries, Company have been duly and validly authorized and issued and are fully paid and non-assessable and (except as otherwise set forth in the Final Memorandum, for directors' qualifying shares) are owned of record and, to the best of such counsel's knowledge, beneficially by the Company Company, either directly or indirectly, free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, all liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;.
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions Each of the Notes Original Indenture and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement Supplemental Indenture has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company andauthorized, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be Indenture Trustee) constitutes a legal, valid and binding agreement of the Company, Company enforceable against the Company in accordance with its terms (subjectterms, as subject to enforcement the effects of remediesbankruptcy, to applicable bankruptcyinsolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
(iv) Each of the Original Declaration and the Amended and Restated Trust Agreement has been duly authorized, executed and delivered by the Company.
(v) The Guarantee Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Guarantee Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or other laws affecting creditors’ ' rights generally from time generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
(vi) The Common Stock initially issuable upon exercise of the Warrants have been duly reserved for issuance, and such shares, when issued in accordance with the Warrant Agreement, will be validly issued, fully paid and nonassessable.
(vii) The Unit Agreement has been duly authorized by the Company and assuming due authorization, execution and delivery by the Initial Purchaser, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to time the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in effect a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
(viii) The Warrant Agreement has been duly authorized by the Company and assuming due authorization, execution and delivery by the Initial Purchaser, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
(ix) The Registration Rights Agreement has been duly authorized by the Company and assuming due authorization, execution and delivery by the Initial Purchaser, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing and except that any with respect to the rights to indemnity or of indemnification and contribution thereunder thereunder, which enforcement thereof may be limited by federal and or state securities laws and public policy considerations)or the policies underlying such laws.
(ixx) The Remarketing Agreement has been duly authorized by the Company and assuming due authorization, execution and delivery by the Company ofInitial Purchaser, constitutes a valid and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material binding agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of enforceable against the Company in accordance with its significant subsidiariesterms, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable subject to the Company effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or its significant subsidiaries;
affecting creditors' rights generally, general equitable principles (xwhether considered in a proceeding in equity or at law) the Company is not and an “investment company” and, after giving effect implied covenant of good faith and fair dealing and except with respect to the Offering rights of indemnification and contribution thereunder, which enforcement thereof may be limited by federal or state securities laws or the Notes and the application of the proceeds therefrom, will not be an “investment company”, as policies underlying such term is defined in the 1940 Act; andlaws.
(xi) To the best of such counsel does not know of any counsel's knowledge and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries Significant Subsidiaries is a party or to of which the any property or asset of the Company or any of its subsidiaries Significant Subsidiaries is the subject that would be is required to be described in a prospectus disclosed pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.Item 103 of Regulation S-K;
(xii) commencing with To the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method best of operation, as represented by such counsel's knowledge neither the Company, will permit any of its Significant Subsidiaries or Washington Mutual Bank, fsb is a party to any written agreement or memorandum of understanding with, or a party to any commitment letter or similar undertaking to, or is subject to any order or directive by, or is a recipient of any extraordinary supervisory letter from, or has adopted any board resolutions at the Company request of, any Bank Regulatory Authority which restricts materially the conduct of its business, or in any manner relates to continue to so qualifyits capital adequacy, its credit policies or its management, nor have any of them been advised by any Bank Regulatory Authority that it is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, extraordinary supervisory letter, commitment letter or similar submission, or any such board resolutions.
(xiii) No registration under Assuming the Act accuracy of the Notes representations and warranties of the Initial Purchaser contained in Section 6 of the Purchase Agreement and its compliance with the agreements set forth therein, it is required not necessary, in connection with the issuance and sale of the Notes Units to the Initial Purchasers Purchaser or the reoffer, resale and delivery of the Units by the Initial Purchaser to the initial purchasers therefrom and the exercise of the Warrants for Exercise Shares, in each case, in the manner contemplated by the Purchase Agreement, the Unit Agreement, the Warrant Agreement, the Amended and Restated Trust Agreement and the Offering Memorandum, to register the Unit Securities or the Exercise Shares under the Securities Act or to qualify the Indenture or the Amended and Restated Trust Agreement under the Trust Indenture Act.
(xiv) The statements contained in the Offering Memorandum under the captions "The Trust", "Description of the Units", "Description of the Warrants", "Description of the Common Stock", "Description of the Preferred Securities", "Description of the Debentures", "Description of the Guarantee", "Description of the Registration Rights Agreement" and "Relationship Among The Preferred Securities, The Debentures and The Guarantee" insofar as such statements purport to summarize certain provisions of the Operative Documents, this Agreement and the Common Stock, as the case may be, provide a fair summary of such provisions in all material respects.
(xv) The statements contained in the Offering Memorandum under the caption "Certain United States Federal Income Tax Consequences" are accurate in all material respects and constitute a fair summary of the matters set forth therein;
(xvi) This Agreement has been duly authorized, executed and delivered by the Company.
(xvii) The execution, delivery and performance of this Agreement and the Operative Documents to which each Washington Mutual Entity is a party, and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any Material Contract, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any of its Significant Subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties or assets; and, except for the registration of the Unit Securities and the Exercise Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the transaction contemplated by the Registration Rights Agreement, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Operative Documents to which the Company is a party or the consummation of the transactions contemplated herein and therein. For purposes of this opinion, Material Contracts mean those agreements filed as exhibits to Washington Mutual's reports filed pursuant to the Exchange Act.
(xviii) To the best of such counsel's knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any Units of the Company owned or to be owned by such person or to require the Company to include such Units in the Units registered pursuant to the Registration Statements.
(xix) Neither the Company nor the Trust is required to register as an investment company under the Investment Company Act as a result of the consummation of the transactions contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereofOperative Documents. In rendering any such opinion, such counsel may rely, as state that its opinion is limited to matters of fact, to governed by the extent such counsel deems proper, on certificates of responsible officers Federal laws of the Company and public officials andUnited States of America, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or Washington and the General Corporation Law of Delaware. Such counsel shall also have furnished to the State of DelawareInitial Purchaser a written statement, addressed to the Initial Purchaser and dated such Delivery Date, in form and substance satisfactory to the Initial Purchaser, to the extent satisfactory in form and scope to effect that (x) it has acted as counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers Company in connection with the preparation of the Offering Memorandum, and counsel for (y) based on the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References foregoing, no facts have come to the Final Memorandum attention of such counsel which lead it to believe that the Offering Memorandum, as of its date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in this subsection (a) shall include any amendment or supplement thereto prepared order to make the statements therein not misleading, except that no view need be expressed as to the financial statements and other financial and statistical data included in accordance with the provisions of this Agreement at the Closing DateOffering Memorandum.
(bd) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPFinger, counsel for P.A. shall have furnished to the Initial PurchasersPurchaser its written opinion, dated as special Delaware counsel to the Closing DateCompany and the Trust, with respect addressed to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering Purchaser and dated such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the BoardPurchaser, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) The Trust has been duly created and is validly existing in good standing as a business trust under the representations Delaware Business Trust Act and warranties all filings required under the Delaware Business Trust Act with respect to the creation and valid existence of the Company Trust as a business trust in this Agreement are true and correct as if made on and as the State of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; andDelaware have been made.
(ii) subsequent to Under the respective dates as of which information is given in Amended and Restated Trust Agreement and the Final Memorandum (exclusive of any amendment or supplement thereto)Delaware Business Trust Act, neither all necessary trust action has been taken on the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations part of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent Trust to duly authorize the execution and delivery of this Agreement and prior to by the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the ActTrust.
(fiii) The Indenture shall have been executed Preferred Securities are duly authorized by the Trust Agreement, and when authenticated, issued and delivered by all the parties theretoTrust in accordance with the Trust Agreement, the Trust Preferred Securities will be duly and validly issued and fully paid and nonassessable interests in the Trust.
(giv) On The holders of Preferred Securities, in their capacity as such, will be entitled to the Closing Date, same limitation of personal liability extended to stockholders of private corporations for profit organized under the Initial Purchasers shall have received General Corporation Law of the Registration Rights Agreement executed by State of Delaware. We note that such holders may be obligated to make payments as set forth in the Company Amended and such agreement shall be in full force and effect at all times from and after the Closing DateRestated Trust Agreement.
(hv) On or before Under the Closing DateAmended and Restated Trust Agreement and the Business Trust Act, the Initial Purchasers Trust has all necessary trust power and counsel for authority to execute and deliver the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from Purchase Agreement and the Company. All opinions, certificates, letters and documents delivered pursuant Operative Documents to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letterswhich it is a party, and documents to perform its obligations thereunder.
(vi) Under the Amended and Restated Trust Agreement and the Business Trust Act, the issuance and sale by the Trust of the Preferred Securities and the execution and delivery by the Trust of the Purchase Agreement and the Operative Documents to which it is a party, and the performance by the Trust of its obligations thereunder, have been duly authorized by all necessary trust action on the part of the Trust.
(vii) Under the Business Trust Act and the Amended and Restated Trust Agreement, the issuance by the Trust of the Preferred Securities is not subject to any preemptive purchase rights of any Person.
(viii) No consent, approval, license, authorization, order, registration or qualification of or with any Delaware court or Delaware governmental agency or body is required solely in such quantities as connection with (i) the Initial Purchasers shall reasonably request.issuance and sale by the Trust of the Preferred Secu
Appears in 1 contract
Sources: Purchase Agreement (Washington Mutual Capital Trust 2001)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Winston & ▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been Subsidiaries is duly organized and are incorporated or otherwise organized, validly existing as corporations and in good standing under the laws of their its respective jurisdictions jurisdiction of incorporation and are has all requisite corporate or other organizational power and authority to own or lease its properties and to conduct its business as described in the Final Memorandum. Each of the Company and the Subsidiaries is duly qualified to transact do business as a foreign corporations and are corporation or entity in good standing under the laws of in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such counsel has been advised that qualification, except where the failure to be so qualified would amount to a material liability not, individually or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandumaggregate, and the reasonably be expected to have a Material Adverse Effect.
(ii) The Company has corporate power to enter into this Agreementthe authorized, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise capitalization set forth in the Final Memorandum; all of the outstanding shares of capital stock or membership interests, as applicable, of the Company and the Subsidiaries have been duly authorized and validly issued, are owned beneficially fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; all of the outstanding shares of capital stock, or membership interests, as applicable, of the Subsidiaries are owned, directly or indirectly, by the Company Company, free and clear clear, and as of any the Closing will be free of all perfected security interests orand, to the best knowledge of such counsel, any free and clear of all other security interests, liens, encumbrances, equities and claims or claims, except for pledges restrictions on transferability (other than those imposed by the Act and the securities or “Blue Sky” laws of subsidiary stock under debt instruments;certain jurisdictions) or voting.
(iii) the statements Except as set forth under the heading “Description of Notes” in the Final MemorandumMemorandum (A) no options, insofar as such statements purport warrants or other rights to summarize certain provisions purchase from the Company or any Subsidiary shares of capital stock or ownership interests in the Company or any Subsidiary are outstanding, (B) no agreements or other obligations to issue, or other rights to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company or any Subsidiary are outstanding and (C) no holder of securities of the Notes and Company or any Subsidiary is entitled to have such securities registered under a registration statement filed by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus Company pursuant to the Act and Registration Rights Agreement. The sole member of Wise Alloys is the Exchange Act and the respective rules and regulations thereunder;Company.
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action Each of the Company Issuers has all requisite corporate or limited liability company power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the Agreement Private Exchange Notes; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly executed and delivered validly authorized by the Company;
(v) the execution and delivery each of the Indenture have been duly authorized by the Company Issuers and, when duly executed and delivered by each of the Company Issuers (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the Indenture will be a legal, valid and legally binding agreement of each of the CompanyIssuers, enforceable against each of the Company Issuers in accordance with its terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generally from time to time in effect). The Indenture meets and (ii) general principles of equity and the requirements for qualification under discretion of the TIAcourt before which any proceeding therefor may be brought.
(viv) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized by all necessary corporate action each of the Company Issuers and, on and as of the Closing Date, the Notes will have been when duly executed and delivered by each of the Company andIssuers and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, assuming execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the TrusteeTrustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of each of the CompanyIssuers, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities , and enforceable against each of the Company has any right which has not been fully exercised Issuers in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or waived other similar laws now or hereafter in effect relating to require creditors’ rights generally and (ii) general principles of equity and the Company to register the offer or sale of any securities owned by such holder under the Act in the offering discretion of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;court before which any proceeding therefor may be brought.
(viivi) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by each of the CompanyIssuers, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by each of the Company Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of each of the CompanyIssuers, entitled to the benefits of the Indenture, and enforceable against each of the Issuers in accordance with their terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generally from time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(vii) The Guarantees are in the form contemplated by the Indenture. Each of the Guarantors has all requisite corporate or limited liability company power and authority to time execute, deliver and perform each of its obligations under the Guarantees. The Guarantees and the guarantees of the Exchange Notes and the Private Exchange Notes have each been duly and validly authorized by each of the Guarantors and, when executed by each of the Guarantors and upon authentication of the Notes, the Exchange Notes or the Private Exchange Notes, as the case may be, by the Trustee in effect)accordance with the provisions of the Indenture and, in the case of the Guarantees, when delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of each of the Guarantors, entitled to the benefits of the Indenture, and enforceable against each of the Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(viii) Each of the Company Issuers and each of the Guarantors has all requisite corporate or limited liability company power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by each of the Company Issuers and each of the Guarantors and, when duly executed and delivered by each of the Company Issuers and each of the Guarantors (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, constitute the valid and legally binding agreement of each of the CompanyIssuers and each of the Guarantors, enforceable against each of the Company Issuers and each of the Guarantors in accordance with its terms terms, except that (subject, as A) the enforcement thereof may be subject to enforcement of remedies, to applicable (i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generally from time to time in effect and except that (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) Each of the execution Issuers and delivery each of the Guarantors has all requisite corporate or limited liability company power and authority to execute, deliver and perform its obligations under the Collateral Documents. Each Collateral Document and the Intercreditor Agreement has been duly and validly authorized, executed and delivered by each of the Company ofIssuers and each of the Guarantors, and, except for any Mortgage (as to which such counsel expresses no opinion), constitutes the valid and legally binding agreement of each of the Issuers and each of the Guarantors, enforceable against each of the Issuers in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally, and (ii) general principles of equity and the performance by discretion of the Company court before which any proceeding therefor may be brought.
(x) Each of the Issuers and each of the Guarantors has all requisite corporate or limited liability company power and authority to execute, deliver and perform its obligations underunder this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by each of the Issuers and each of the Guarantors of the transactions contemplated hereby have been duly and validly authorized by each of the Issuers and each of the Guarantors. This Agreement has been duly executed and delivered by each of the Issuers and each of the Guarantors.
(xi) The Indenture, this Agreementthe Notes, the Guarantees, the Registration Rights Agreement, the Indenture each Collateral Document and the Intercreditor Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum. The statements in the Final Memorandum under the headings “Capitalization”, “Description of Other Indebtedness”, “Description of Notes” and “Exchange Offer; Registration Rights” are true and correct in all material respects and, to the Exchange Notes extent such statements describe law, statutes, legal proceedings or provisions of agreements, such statements accurately describe such law, statutes, legal proceedings and the Private Exchange Notesprovisions of such agreements in each case in all material respects.
(xii) No legal or governmental proceedings are pending or, to the issuanceknowledge of such counsel, offering and threatened to which any of the Company or the Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary is subject that, if determined adversely to the Company or the Subsidiaries, would reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, or that seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes Securities to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and be sold hereunder or the consummation of the other transactions herein contemplated do not described in the Final Memorandum under the caption “Use of Proceeds.”
(xxiii) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws None of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act Company or the TIA Subsidiaries is to the knowledge of such counsel, (i) in connection with the exchange offer contemplated by the Registration Rights Agreementviolation of its certificate of incorporation, bylaws or limited liability company agreement (yor similar organizational document), (ii) conflict with or result in a breach or violation of any of the terms and provisions ofstatute, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, except for any such breach or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or (iii) in breach or default under (nor has any event occurred that, with notice or passage of time or both, would constitute a default under) or in violation of any court of the terms or other governmental authority or provisions of any arbitrator Contract known to such counsel (including in any event any of the foregoing that have been filed by the Company with the Commission), except for any such breach, default, violation or event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xiv) The execution, delivery and applicable performance of this Agreement, the Guarantees, the Indenture, the Registration Rights Agreement and the Collateral Documents and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Company or its significant subsidiaries;
(xInitial Purchasers) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”conflict with or constitute or result in a breach or a default, as such term is defined or result in the 1940 Act; and
(xi) such counsel does not know creation or imposition of any legal lien, charge or governmental proceedings pending encumbrance upon any property or threatened to which asset of the Company or any Subsidiary (other than pursuant to the Collateral Documents), under (or an event that with notice or passage of its subsidiaries is time or both would constitute a party default under) or violation of or pursuant to, any of (i) the terms or provisions of any Contract known to which such counsel (including in any event any of the property foregoing that have been filed by either of the Issuers with the Commission), except for any such conflict, breach, violation, imposition, default or event that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) the certificate of incorporation, bylaws or limited liability company agreement (or similar organizational document) of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum Subsidiaries, or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (iiii) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (assuming compliance with all applicable state securities or “QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) Blue Sky” laws and assuming the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company Initial Purchasers in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part Section 8 hereof) any statute, judgment, decree, order, rule or regulation known to such counsel to be performed or satisfied at or prior applicable to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a wholethe Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation that would not, individually or in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)aggregate, reasonably be expected to have a Material Adverse Effect.
(exv) Subsequent to the execution and delivery of this Agreement and prior to the Closing DateNo consent, there shall not have occurred any downgradingapproval, nor shall any notice have been given authorization or order of any intended or potential downgrading or of any review governmental authority is required for a possible change that does not indicate the direction of the possible change, in the rating accorded issuance and sale by any of the Company’s securities by Issuers or any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all Guarantors of the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects Securities to the Initial Purchasers or the consummation by each of the Issuers and each of the Guarantors of the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained.
(xvi) The Company and the Subsidiaries have obtained all Permits necessary to conduct the businesses now or proposed to be conducted by them as described in the Final Memorandum, the lack of which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; each of the Company and the Subsidiaries has performed all of its obligations with respect to such Permits and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Permit, except with respect to where such non-performance, revocation, termination, or other impairment, would not reasonably be expected to have a material adverse effect.
(xvii) No consent, approval, authorization or order of any United States federal, New York or Delaware governmental agency, pursuant to any presently existing law or regulation of the United States of America or the State of New York, the Delaware General Corporation Law, the Delaware Limited Liability Company Act, and the Maryland Limited Liability Company Act is required to be obtained or made by either of the Issuers for the Initial Purchasers. The Company shall furnish execution, delivery and performance by the Issuers and the Guarantors of the Security Agreement, except for the filing of the UCC financing statement or any other filing naming the Issuers and the Guarantors as debtors and the Collateral Agent (as defined in the Security Agreement) as secured party, in a form attached to such opinion (the Initial Purchasers such conformed copies of such opinions, certificates, letters, “Financing Statement”) and documents in such quantities as routine filings required to be made by the Initial Purchasers shall reasonably requestIssuers and the Guarantors after the date hereof to comply with their covenants under the Security Agreement.
(xviii) To the knowle
Appears in 1 contract
Sources: Purchase Agreement (Listerhill Total Maintenance Center LLC)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the each Initial Purchasers Purchaser to purchase and pay for Offered Notes on the Notes shall, Closing Date will be subjectsubject to the accuracy, in the Initial Purchasers’ sole discretionall material respects, to the accuracy of the representations and warranties of the Company contained applicable Issuer herein as and of the date hereof and as of each Closing Date, as if made on and as of each Closing DateOfficeMax herein, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofperformance, to the performance in all material respects, by the Company such Issuer of its covenants and agreements obligations hereunder and to the following additional conditionsconditions precedent:
(a) On the Closing DateSuch Issuer’s Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Indenture Collateral of such Issuer shall have been pledged to the Indenture Trustee pursuant to the terms of the applicable Indenture.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Companycertificate, dated as of the Closing Date, of a Regular Manager of each Issuer to the effect that such Regular Manager has carefully examined this Agreement, each Memorandum and the Transaction Documents to which such Issuer is a party and that:
, to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of such counsel Issuer, whether or not arising in the ordinary course of business, or the ability of such Issuer to perform its obligations hereunder or under the Transaction Documents except as contemplated by each Memorandum, (ii) the representations and warranties of such Issuer set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) such Issuer has no reason complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents to which it is a party, at or prior to the Closing Date, (iv) the representations and warranties of such Issuer in the Transaction Documents to which it is a party are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or the date of such opinion, included or includes any Additional Offering Document contains an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iic) the Company and The Class A-1 Notes shall each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized rated no less than “Aa3” by ▇▇▇▇▇’▇ and are validly existing as corporations in good standing under “A” by S&P, the laws of their respective jurisdictions of incorporation Class A-2 Notes shall each have been rated no less than “A1” by ▇▇▇▇▇’▇ and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where “A” by S&P, such counsel has ratings shall not have been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandumrescinded, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out no public announcement shall have been made by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge rating agency that its rating of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges Class of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Offered Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification placed under the TIAreview.
(vid) the Notes The Initial Purchasers shall have been duly authorized by all necessary corporate action of the Company andreceived an opinion, on and as of dated the Closing Date, of in-house counsel to the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Indenture Trustee, will be the legal, valid in form and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled substance satisfactory to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)Initial Purchasers.
(viiie) the Company has all requisite corporate power The Initial Purchasers shall have received legal opinions, in form and authority substance satisfactory to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal(i) of King & Spalding LLP, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes counsel to the Initial Purchasers by the Company pursuant to this AgreementIssuers and OfficeMax, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable respect to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” andcertain federal tax, after giving effect ERISA, securities law matters and with respect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to (excluding the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized sections entitled “Available Information About Wachovia” and has operated in conformity with the requirements for qualification as a real estate investment trust (“REITAvailable Information About ▇▇▇▇▇▇ Brothers”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes from Dechert LLP, counsel to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon with respect to corporate, securities law, investment company matters and with respect to the opinion Final Memorandum (excluding the sections entitled “Available Information About Wachovia” and “Available Information About ▇▇▇▇▇▇ Brothers”), (iii) of Dechert LLP with respect to certain “true contribution” and “non–consolidation” issues in form and substance satisfactory to the Initial Purchasers; and (iv) of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ Leyton & Finger LLP shall be delivered with respect to the Initial Purchasers and counsel for the Initial Purchasers covering certain matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Dateunder Delaware law.
(bf) The Initial Purchasers shall have received a legal an opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, of Dechert LLP with respect to certain legal matters relating “perfection issues” in form and substance satisfactory to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersPurchasers.
(cg) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP the Indenture Trustee a letter certificate signed by one or letters datedmore duly authorized officers of the Indenture Trustee, respectively, the date hereof and dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchaserscustomary form.
(dh) The Company Each Issuer and OfficeMax shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations counsel such further information, certificates and warranties of the Company in this Agreement are true and correct documents as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and its counsel for may reasonably have requested, and all proceedings in connection with the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to transactions contemplated by this Agreement will comply with the provisions hereof only if they are satisfactory and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers and counsel for the Initial Purchasers. The Company its counsel.
(i) Each Issuer and OfficeMax shall furnish have furnished to the Initial Purchasers such conformed copies of such opinionsfurther information, certificates, lettersopinions or documents reasonably requested by the Initial Purchasers, including any material delivered to the Rating Agencies.
(j) All documents incident hereto and documents to the Transaction Documents shall be reasonably satisfactory in such quantities as form and substance to the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects or waived by the Initial Purchasers when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Issuers in writing, or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Sources: Purchase Agreement (Officemax Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, Purchaser hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On The Initial Purchaser shall not have discovered and disclosed to the Closing DateCompany prior to or on such Delivery Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, is material or omits to state any fact which is material and necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers Purchaser, and the Company shall have received a legal opinion from furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters;
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Chance US LLPshall have furnished to the Initial Purchaser its written opinion, as counsel for to the Company, addressed to the Initial Purchaser and dated such Delivery Date, in form and substance reasonably satisfactory to the Closing DateInitial Purchaser, to the effect that:
(i) The Company and each of the Delaware Guarantors have been duly organized and are validly existing as corporations in good standing under the laws of Delaware, and have all corporate power and authority necessary to conduct their respective businesses as described in the Offering Memorandum;
(ii) All of the outstanding shares of Common Stock of the Company have been duly authorized, validly issued, fully paid and non-assessable; and all of the issued shares of capital stock of each Delaware Guarantor of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except for directors' qualifying shares) and, based solely on our examination of each such subsidiary's stock ledger and minute book, all such shares are held of record by the Company and/or a subsidiary of the Company;
(iii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming the Indenture is a valid and legally binding obligation of the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing;
(iv) The Notes have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the terms of the Purchase Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; and the Notes, when issued and delivered, will conform to the description thereof contained in the Offering Memorandum;
(v) The Conversion Shares that are authorized on the date hereof have been duly authorized and validly reserved for issuance upon conversion of the Notes; and the Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable;
(vi) The Guarantees have been duly authorized, executed and issued by the Delaware Guarantors and, assuming due authentication of the Notes by the Trustee, upon payment and delivery in accordance with the terms of the Purchase Agreement will constitute valid and legally binding obligations of each of the Delaware Guarantors enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing;
(vii) Assuming that the Guarantees have been duly authorized and issued by each of the Non-Delaware Guarantors and, assuming due authentication of the Notes by the Trustee, upon payment and delivery of the Notes in accordance with the terms of the Purchase Agreement, the Guarantees will constitute valid and legally binding obligations of the Non-Delaware Guarantors enforceable against the Non-Delaware Guarantors.
(viii) The statements contained in the Offering Memorandum under the captions "Risk Factors-The notes are subordinated to all our existing and future senior indebtedness, which may inhibit our ability to repay you," "Risk Factors-The terms of our senior indebtedness could restrict our flexibility and limit our ability to satisfy obligations under the Notes," "Risk Factors--Future sales of common stock of L-3 Holdings in public market could lower the stock price," "Risk Factors--Delaware Law and the charter documents of L-3 Holdings may impede or discourage a takeover, which could cause the market price of its shares to decline," "Certain Relationships and Related Transactions," "Description of Other Indebtedness," and "Description of the Notes," insofar as they describe charter documents, contracts, statutes, rules and regulations and other legal matters, constitute an accurate summary thereof in all material respects;
(ix) The statements made in the Offering Memorandum under the caption "Certain United States Federal Tax Considerations," insofar as they purport to constitute summaries of matters of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects;
(x) This Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors; and
(xi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors and, assuming that the Registration Rights Agreement is the valid and legally binding obligation of the Initial Purchaser and Non-Delaware Guarantors, constitutes a valid and legally binding obligation of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms.
(xii) Except as specifically disclosed in the Offering Memorandum, the issue and sale of the Notes and Guarantees being delivered on such Delivery Date by the Company and the Guarantors and the compliance by the Company and the Guarantors, as applicable, with all of the provisions of this Agreement and the Indenture and the consummation of the transactions contemplated hereby and thereby will not breach or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed as an exhibit to a document incorporated by reference in the Offering Memorandum ("Exchange Act Documents") nor will such actions violate the Certificate of Incorporation or By-Laws or other organizational documents of the Company or the Delaware Guarantors, or any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law by any court or governmental agency or body or court having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets; and no consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware Limited Liability Company Act or Delaware General Corporation Law or, to such counsel's knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law is required for the issue and sale of the Notes by the Company (and the guarantees of such Notes by the Guarantors), except for such consents, approvals, authorizations, registrations or qualifications as may be required state securities or Blue Sky laws in connection with the purchase and distribution of the Notes and Guarantees by the Initial Purchaser. The opinions set forth in this paragraph are based upon our consideration of only those statutes, rules and regulations which, in such counsel's experience, are normally applicable to securities underwriting transactions.
(xiii) No registration of the Notes under the Securities Act and no qualification of the Indenture under the Trust Indenture Act is required for the offer and sale of the Notes by the Company to the Initial Purchaser or the reoffer and resale of the Notes by the Initial Purchaser to the Initial Purchaser thereform solely in the manner contemplated by the Offering Memorandum, the Purchase Agreement and the Indenture. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States and the laws of the State of New York and the Delaware General Corporation Law. Such counsel shall also have furnished to the Initial Purchaser a written statement, addressed to the Initial Purchaser and dated the Delivery Date. Such counsel has not independently verified the accuracy, completeness or fairness of the statements made or included in the Offering Memorandum and take no responsibility therefor, except as and to the extent set forth in paragraphs (viii) and (ix) above. In the course of the preparation by the Company of the Offering Memorandum (excluding the Exchange Act Documents), such counsel participated in conferences with certain officers and employees of the Company, with representatives of PricewaterhouseCoopers, LLP and with counsel to the Company. Based upon such counsel's examination of the Offering Memorandum (including the Exchange Act Documents), such counsel's investigations made in connection with the preparation of the Offering Memorandum (excluding the Exchange Act Documents) and such counsel's participation in the conferences referred to above, such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Offering Memorandum, as of its date or including the date of such opinion, included or includes Exchange Act Documents contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and , except that in each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where case such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for need not express belief with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium financial statements or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act financial data contained in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumtherein by reference.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes Securities shall, be subject, in the Initial Purchasers’ its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Kirk▇▇▇▇ Chance US LLP& ▇lli▇, counsel ▇▇unsel for the Company, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchaser, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of The Company is a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly corporation existing as corporations in good standing under the laws of their respective jurisdictions the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under Idaho.
(ii) The Company has the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full corporate power and authority to ownenter into, lease execute, deliver and operate their respective properties and assets and conduct their respective businesses as described in perform its obligations under the Final MemorandumNotes, and the Company has corporate power to enter into Exchange Notes, the Private Exchange Notes, Exchange Debentures, Indenture, the Registration Rights Agreement, this Agreement, the Registration Rights Agreement Exchange Indenture and the Indenture Other Agreements, including, without limitation, the corporate power to issue, sell and to carry out all the terms and provisions hereof and thereof and of deliver the Notes to be carried out and Preferred Stock as contemplated by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;this Agreement.
(iii) The Company's Board of Directors has adopted by requisite vote the statements set forth under resolutions necessary to authorize the heading “Description Company's execution, delivery and performance of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary the Certificate of such provisions; Designation, the Registration Rights Agreement, this Agreement, the Exchange Indenture and the statements Other Agreements, and the pricing advisor appointed by the Company's Board of Directors has approved the price and interest rate set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;.
(iv) the execution and delivery of this Agreement The Notes have each been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly validly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery thereof of the Indenture by the TrusteeTrustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute Notes under the Indenture and will constitute the valid and legally binding obligations of the Company and the Notes and the Indenture will each be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms their terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights and remedies generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta proceeding in equity or at law). The Indenture meets the requirements for qualification under the TIA.
(viv) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee Trus- tee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), the Exchange Notes and Private Exchange Notes will be constitute Notes under the legalIndenture, will constitute the valid and legally binding obligations of the Company, Company and will be enforceable against the Company in accordance with their terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights and remedies generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta proceeding in equity or at law).
(viiivi) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has The Exchange Debentures have been duly and validly authorized by the Company and, when executed by the Company, and authenticated by the Trustee in accordance with the terms of the Exchange Indenture, will constitute Exchange Debentures under the Exchange Indenture and will constitute the valid and legally binding obligations of the Company and the Exchange Debentures and the Exchange Indenture will each be enforceable against the Company in accordance with their terms, except that enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and remedies generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(vii) When duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial PurchasersPurchaser), the Registration Rights Agreement will be a legal, constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (subject, as A) the enforcement thereof may be subject to enforcement of remedies, to applicable (i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting creditors’ rights generally from time to time now or hereafter in effect relating to creditors' rights and except that remedies generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(viii) When executed by the Company, the Other Agreements will constitute valid and legally binding agreements of the Company enforceable against the Company in accordance with their terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and remedies generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(ix) The statements in the execution Final Memorandum under the headings "Description of Notes," "Description of the Senior Exchangeable Preferred Stock and delivery by Exchange Debentures" and "Exchange Offer; Registration Rights," insofar as such statements purport to summarize certain provisions of the Indenture, the Notes, the Certificate of Designation, the Preferred Stock, the Exchange Indenture, the Exchange Debentures and the Registration Rights Agreement and subject to the limitations contained in such statements, provide a fair and accurate summary in all material respects of such provisions of such agreements.
(x) To the actual knowledge of such counsel, no legal or governmental proceedings are pending to which any of the Company ofor the Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary is subject which seeks to restrain, and enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold to the Initial Purchaser or the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the NotesIndenture, the Exchange Notes Indenture or the Certificate of Designation.
(xi) The Company's execution and the Private Exchange Notes, the issuance, offering and sale delivery of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or the Certificate of Designation and the Indenture, and the performance of its agreements under this Agreement, the Registration Rights Agreement, the Certificate of Designation and the Indenture (y) conflict with or result in a breach or violation of any including, without limitation, the issuance and sale of the terms and provisions of, Securities to the Initial Purchaser) will not (i) violate the articles of incorporation or constitute a default under, any indenture, mortgage, deed of trust, lease bylaws (or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws similar organizational documents) of the Company or any of its significant subsidiariesSubsidiaries, or (ii) constitute a material violation of any statute or any judgment, decree, order, governmental rule or regulation regulation, which in the experience of such counsel, is normally applicable both to the general business corporations that are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without such counsel having made any special investigations as to other laws and provided that such counsel need express no opinion with respect to (a) any laws, rules or regulations to which the Company may be subject as a result of the Initial Purchaser's legal or regulatory status or (b) any laws, rules or regulations relating to misrepresentation or fraud), or (iii) constitute or result in a breach or default under (or an event which with notice or the passage of time or both would constitute a default under) the terms or provisions of any court contract set forth on a schedule to such counsel's opinion, except (in the case of clauses (ii) and (iii) above) for any such conflict, breach, violation, default or other event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Such counsel's opinion in this paragraph need not address any impact the Company's actions may have under any financial maintenance covenants or tests in contracts specified in clause (iii) above, any consequences a default by the Company under this Agreement, the Registration Rights Agreement, the Certificate of Designation, the Exchange Indenture or the Indenture may have under any contract specified in clause (iii) above or any cross default provisions in the contracts specified in clause (iii) above.
(xii) To the actual knowledge of counsel, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company of the Securities to the Initial Purchaser or any arbitrator known the consummation by the Company of the other transactions contemplated hereby, except such as may be required under the Act, the Exchange Act, the TIA and the Blue Sky laws, as to which such counsel need express no opinion, and applicable to the Company or its significant subsidiaries;those which have previously been obtained.
(xxiii) To the Company is not an “investment company” andactual knowledge of such counsel, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any there are no legal or governmental proceedings pending involving or threatened to which affecting the Company or the Subsidiaries that would cause such counsel to conclude that such proceeding is required by Item 103 of Regulation S-X to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum, nor are there any of its subsidiaries is a party material contracts or to other documents which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xiixiv) commencing with the Company’s taxable year ended December 31, 1998, None of the Company was organized or the Subsidiaries is, or immediately after the sale of the Securities to be sold to the Initial Purchaser and has operated the application of the proceeds from such sale (as described in conformity with the requirements for qualification as a real estate investment trust (“REIT”) Final Memorandum under the Codecaption "Use of Proceeds") will be, and an "investment company" as such term is defined in the Company’s present and proposed method Investment Company Act of operation1940, as represented by the Company, will permit the Company to continue to so qualifyamended.
(xiiixv) No registration under the Act of the Notes Securities is required in connection with the sale of the Notes Securities to the Initial Purchasers Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes Securities by the Initial Purchasers Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or (B) that the offer or sale of the Notes Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy and completeness of the Initial Purchasers’ Purchaser's representations in Section 8 8, and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes Securities to the Initial Purchasers Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof. In rendering any such opinion.
(xvi) Neither the sale, such counsel may relyissuance, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers execution or delivery of the Company and public officials and, as to matters involving Securities nor the application of laws the net proceeds therefrom as described in the Final Memorandum under the caption "Use of any jurisdiction other than the State of New York Proceeds" will violate Regulation G, T, U or the United States or the General Corporation Law X of the State Board of DelawareGovernors of the Federal Reserve System. At the time the foregoing opinion is delivered, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇Kirk▇▇▇▇ LLP. An opinion of & ▇lli▇ ▇▇▇▇▇▇▇ LLP shall be delivered to ll additionally state that it has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchasers Purchaser and counsel for the Initial Purchasers covering Purchaser, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(x)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). In rendering such opinion, Kirk▇▇▇▇ & ▇lli▇ ▇▇▇ll have received and may rely upon such certificates and other documents and information as they may reasonably requested by request to pass on such matters. In addition, in rendering their opinion, Kirk▇▇▇▇ & ▇lli▇ ▇▇▇ state that their opinion is limited to matters of New York law and the Federal Law of the United States. The opinion of Kirk▇▇▇▇ & ▇lli▇ ▇▇▇cribed in this Section shall be rendered to the Initial PurchasersPurchaser at the request of the Company and shall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The On the Closing, the Initial Purchasers Purchaser shall have received a legal the opinion from ▇▇▇▇of Ange▇▇ ▇▇▇▇▇▇ & . ▇▇▇▇▇▇▇ LLP▇▇▇, ▇▇., ▇▇neral counsel for the Initial PurchasersCompany, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and of the Closing Date, in the form set forth below and substance otherwise reasonably satisfactory to the Initial Purchaser and counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the BoardPurchaser, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i1) The Company has been duly incorporated and is validly existing under the representations and warranties laws of the Company in this Agreement are true State of Idaho, with corporate power and correct authority to own, lease and operate its assets and properties and conduct its business as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given described in the Final Memorandum (exclusive and to enter into and perform its obligations under this Agreement and each of any amendment or supplement thereto), neither the Other Agreements; the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamityis 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 where the failure so to qualify or to be in good standing would not covered by insuranceresult in a Material Adverse Effect;
(2) The Company has the authorized, or from any labor dispute or any legal or governmental proceeding, issued and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, outstanding capitalization set forth in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results Final Memorandum; all of operations the outstanding shares of capital stock of the Company and the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or any similar rights; except as set forth in the Final Memorandum, all of its subsidiariesthe outstanding shares of capital stock of the Subsidiaries are owned, taken as a wholedirectly or indirectly, except in each case as described in or contemplated by the Final Memorandum (exclusive Company, free and clear of any amendment or supplement thereto).
(e) Subsequent all perfected security interests and, to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies knowledge of such opinionscounsel, certificatesfree and clear of all other liens, lettersencumbrances, equities and documents in such quantities as the Initial Purchasers shall reasonably request.claims or restrictions on transferability (other tha
Appears in 1 contract
Sources: Purchase Agreement (McMS Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, discovered and disclosed to the effect that:
(i) Company prior to or on such counsel has no reason to believe Delivery Date that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or the date of such opinion, included any amendment or includes supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material fact or omitted or omits to state any fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and each of its “significant subsidiaries” information that they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇▇ Godward LLP shall have furnished to the Initial Purchasers their written opinion, as defined counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in Rule 1.02(wform and substance satisfactory to the Initial Purchasers, to the effect that:
(i) of Regulation S-X under the Exchange Act) have The Company has been duly organized and are is validly existing as corporations a corporation in good standing under the laws of their respective jurisdictions the State of incorporation and are Delaware, and, based solely on certificates of public officials, is duly qualified to transact do business as foreign corporations and are is in good standing under as a foreign corporation in each jurisdiction in which its ownership or lease of property or the laws conduct of all other jurisdictions its business requires such qualification, except where such counsel has been advised that the failure to be so qualified would amount to not have a material liability or disability to the Company Material Adverse Effect, and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full has all corporate power and authority necessary to own, lease and operate their respective own or hold its properties and assets and conduct their respective the businesses in which it is engaged, as described in the Final Offering Memorandum;
(ii) The Conversion Shares, which are authorized on the date hereof, have been duly and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement validly authorized and the Indenture and to carry out all the terms and provisions hereof and thereof and reserved for issuance upon conversion of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action and are free of the Company and the Agreement has been duly executed preemptive rights; all Conversion Shares, when so issued and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by upon such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company conversion in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legalduly and validly authorized and issued, valid fully paid and binding obligations nonassessable and free and clear of all liens, encumbrances, equities or claims imposed by or arising from actions of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).;
(viiiiii) The statements in the Company has all requisite corporate power and authority to execute, deliver and perform its obligations Offering Memorandum under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement captions “Description of the CompanyNotes” and “Description of Capital Stock,” insofar as they purport to summarize the provisions of the Indenture, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Pledge Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, Common Stock (including the issuance, offering Conversion Shares) are accurate and sale of the Notes complete in all material respects to the Initial Purchasers by extent required if such statements were contained in a registration statement on Form S-3 under the Company Securities Act;
(iv) There is no restriction upon the voting or transfer of, any shares of Common Stock pursuant to this Agreement, the compliance by Company’s certificate of incorporation or bylaws;
(v) To the Company with the other provisions knowledge of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to other than as set forth in the Offering of the Notes and the application of the proceeds therefromMemorandum, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to of which the any property or asset of the Company or any of its subsidiaries is the subject that would be required to be described in a prospectus pursuant which, if determined adversely to the Act Company or any of its subsidiaries might have a Material Adverse Effect or which might reasonably be expected to materially and adversely affect the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder; to the actual knowledge of such counsel, no such proceedings are overtly threatened or contemplated by governmental authorities or, except as set forth or contemplated in the Offering Memorandum, overtly threatened by others; and, to the actual knowledge of such counsel, the aggregate of all pending legal or governmental proceedings to which the Company and its subsidiaries are a party or of which any of their property or assets is the subject (other than the Company’s or any of its subsidiaries’ patent applications currently pending before the U.S. Patent and Trademark Office or before any foreign governmental authority that administers the registration of patents) which are not described in the Final Memorandum or any statutesOffering Memorandum, regulationsincluding ordinary routine litigation incidental to the business, contracts or other documents that would could not reasonably be required expected to be described result in a prospectus pursuant to the Act that are not described or incorporated in the Final MemorandumMaterial Adverse Effect.
(xiivi) commencing with the Company’s taxable year ended December 31The execution, 1998delivery and performance of this Agreement, the Company was organized and has operated in conformity with Indenture, the requirements for qualification as a real estate investment trust (“REIT”) under the Code, Pledge Agreement and the Company’s present Registration Rights Agreement and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act issuance of the Notes is and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificate of incorporation or bylaws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the properties or assets of the Company; and, except as may be required by the securities or “blue sky” laws of any state of the United States in connection with the sale of the Notes to Notes, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the Initial Purchasers as contemplated by execution, delivery and performance of this Agreement Agreement, the Indenture and the Final Memorandum Pledge Agreement by the Company and the issuance of the Notes and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby;
(vii) No registration of the Notes or the Conversion Shares under the Securities Act, and no qualification of the Indenture or an indenture or the Pledge Agreement under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Notes or in connection with the initial resale conversion of the Notes into Conversion Shares, in each case, in the manner contemplated by the Offering Memorandum, this Agreement, the Indenture and the Pledge Agreement;
(viii) The statements in the Offering Memorandum under the caption “Certain United States Federal Income Tax Considerations,” insofar as they purport to constitute summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act;
(ix) The Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended;
(x) The Company has all necessary corporate right, power and authority to execute and deliver each of the Operative Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Notes and the Conversion Shares to the Initial Purchasers;
(xi) This Agreement has been duly authorized, executed and delivered by the Company;
(xii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a legally valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general principles of equity and limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), and by an implied covenant of good faith and fair dealing;
(xiii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Initial Purchasers Purchasers, constitutes a legally valid and binding agreement of the Company enforceable against the Company in accordance with Section 8 its terms, except as rights to indemnity contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general principles of this Agreementequity and limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), and prior to by an implied covenant of good faith and fair dealing;
(xiv) The Pledge Agreement has been duly authorized, executed and delivered by the commencement Company and, assuming due authorization, execution and delivery thereof by the Collateral Agent, constitutes a legally valid and binding agreement of the Exchange Offer Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general principles of equity and limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), and by an implied covenant of good faith and fair dealing;
(xv) Under the Uniform Commercial Code as in effect on the date hereof in the State of New York (the “NYUCC”), the provisions of the Pledge Agreement are sufficient to create and grant a security interest in the Collateral Account (as defined in the Registration Rights Pledge Agreement) or and the effectiveness of the Shelf Registration Statement Pledged Securities (as defined in the Registration Rights Pledge Agreement) credited thereto in favor of the Collateral Agent to secure the payment and performance of the Obligations (as defined in the Pledge Agreement);
(xvi) Under the NYUCC, the Indenture is not required provisions of the Pledge Agreement are effective to be qualified under perfect the TIAsecurity interest of the Collateral Agent in the Collateral Account and the Pledged Securities credited thereto, in each case assuming that (i) (A) that New York is deemed the purchasers who buy such Notes in Securities Intermediary’s jurisdiction within the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale meaning of Section 8-110 of the Notes is made in an offshore transaction as defined in Regulation S, NYUCC; (ii) the accuracy Collateral Account is a “securities account” within the meaning of Article 8 of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and NYUCC; (iii) the due performance Pledged Securities are “security entitlements” within the meaning of Article 8 of the NYUCC, and (iv) ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association, in its capacity as the Securities Intermediary under the Pledge Agreement is a securities intermediary within the meaning of Section 8-102(a)(14) of the NYUCC;
(xvii) Assuming that the Collateral Agent and each of the holders of the Notes has given value within the meaning of Section 8-502 of the NYUCC and without notice of an adverse claim within the meaning of Sections 8-105 and 8-502 of the NYUCC (and as adverse claim is defined in Section 8-102(a)(1) of the NYUCC), no person may assert an action based on an adverse claim against the Collateral Agent in accordance with Section 8-502 of the NYUCC; and
(xviii) The Notes have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers Purchasers, will constitute legally valid and binding obligations of the agreements set forth Company, entitled to the benefits of the Indenture and enforceable against the Company in Section 8 hereofaccordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general principles of equity and limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), and by an implied covenant of good faith and fair dealing. In rendering any such opinion, such counsel may rely, as state that its opinion is limited to matters of fact, to governed by the extent such counsel deems proper, on certificates of responsible officers federal laws of the Company and public officials andUnited States of America, as to matters involving the application of laws of any jurisdiction other than the State of New York or York, the United States or the Delaware General Corporation Law and the NYUCC, and may state that it is relying, in respect of matters of New York law (other than the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial PurchasersNYUCC), upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP LLP, and in respect of matters of fact, upon certificates of officers of the Company, provided that such counsel shall have received state that it believes that the Initial Purchasers and may rely it are justified in relying upon such certificates and other documents and information as it may reasonably request certificates. Such counsel shall also have furnished to pass upon such matters.
(c) The the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters datedwritten statement, respectively, addressed to the date hereof Initial Purchasers and the Closing dated such Delivery Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) that during the representations course of preparing the Offering Memorandum, such counsel participated in conferences with officers and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any representatives of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing DateCompany’s independent public accountants, the Initial Purchasers and their counsel, at which the contents of the Offering Memorandum were discussed, and while such counsel for has not independently verified and is not passing upon the Initial Purchasers shall accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, no facts have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects come to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies attention of such opinionscounsel which lead it to believe that the Offering Memorandum (other than the financial statements, certificatesfinancial and statistical data and supporting schedules as to which such counsel shall make no statement), lettersas of its date or as of such Delivery Date, and documents contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in such quantities as order to make the Initial Purchasers shall reasonably requeststatements therein, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation respective obligations of the several Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder on any Closing Date are subject to the accuracy accuracy, when made and on such Closing Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Dateherein, to the accuracy of the statements of the Company’s officers Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder their obligations hereunder, and to each of the following additional terms and conditions:
(a) On The Offering Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to the Closing Date, Representatives as promptly as practicable on or following the date of this Agreement or at such other date and time as to which the Representatives may agree; and no stop order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(b) None of the Initial Purchasers shall have received discovered and disclosed to the Company on or prior to such Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a legal fact that, in the opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, of counsel for the Initial Purchasers, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of each of the Transaction Documents, the Offering Memorandum and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. shall have furnished to the Representatives such counsel’s written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated the such Closing Date, in form and substance reasonably satisfactory to the Representatives, to the effect that:
(i) such counsel The Company has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized incorporated and are is validly existing as corporations a corporation in good standing under the laws of their respective jurisdictions the State of incorporation Delaware, and are is duly qualified to transact do business as foreign corporations and are is in corporate good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described foreign corporation in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and Commonwealth of the Notes to be carried out by it; all Massachusetts.
(ii) All of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiariesCompany have been duly and validly authorized and issued, except as otherwise set forth are fully paid and non-assessable and conform to the description thereof contained in or incorporated by reference in the Final Offering Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;.
(iii) the statements set forth under the heading “Description of Notes” in the Final MemorandumThe Company has full right, insofar as such statements purport power and authority to summarize certain provisions execute and deliver each of the Notes Transaction Documents and the Indenture, provide a fair summary of such provisionsto perform its obligations thereunder; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be corporate action required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming taken for the due and proper authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of each of the Company, enforceable against Transaction Documents and the Company in accordance with its terms (subject, as to enforcement consummation of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIAtransactions contemplated thereby have been duly and validly taken.
(viiv) The Securities being issued on the Notes date hereof have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered authenticated by the Company Trustee in accordance with the terms of the Registration Rights Agreement and manner provided in the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee Trustee) and due authentication issued and delivery of the Exchange Notes and the Private Exchange Notes delivered by the Trustee Company to you against payment therefor in accordance with the Indenture)terms of the Purchase Agreement, the Securities will be the legal, constitute valid and binding obligations of the Company, Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)terms.
(viiiv) The shares of Common Stock initially issuable upon conversion of the Securities pursuant to the Indenture (the “Conversion Shares”) have been duly authorized and reserved for issuance and, when issued and delivered upon conversion of the Securities in accordance with the terms of the Indenture, will be validly issued, fully paid and nonassessable and not be subject to any preemptive rights under the Delaware General Corporation Law, the Company’s charter or bylaws, to our knowledge, or any material contract to which the Company has or any of its properties or assets is bound and will conform in all requisite corporate power and authority material respects to execute, deliver and perform its obligations under the Registration Rights Agreement; description of the Registration Rights Agreement Common Stock contained or incorporated by reference in the Offering Memorandum.
(vi) The Indenture has been duly authorized by the Company andauthorized, when duly executed and delivered by the Company (and, assuming due authorization, execution and delivery authentication thereof by the Initial Purchasers)Trustee, will be constitutes a legal, valid and binding agreement of the Company, Company enforceable against the Company in accordance with its terms terms.
(subjectvii) The Purchase Agreement has been duly authorized, as to enforcement executed and delivered by the Company.
(viii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time the Company enforceable against the Company in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations)accordance with its terms.
(ix) The statements in the execution Offering Memorandum under the caption “Description of Notes” and delivery by “Description of Capital Stock”, in each case insofar as such statements constitute matters of law or legal conclusions or summarize the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale terms of the Notes Transaction Documents, have been reviewed by such counsel and are correct in all material respects.
(x) The statements set forth under the caption “Certain United States Federal Income Tax Consequences”, insofar as they purport to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other describe provisions of this Agreement the United States federal tax laws referred to therein, fairly and accurately summarize in all material respects, such laws referred to therein.
(xi) The execution, delivery and performance of the Transaction Documents and the consummation of the other transactions herein contemplated do not (x) require thereby, including without limitation, the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer issuance and sale of the Notes Securities by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights AgreementCompany, or (y) will not conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, under any indenture, mortgage, deed of trust, lease loan agreement or other material agreement or instrument, known to such counsel, instrument to which the Company or any of its significant subsidiaries is a party or by which the Company is bound or to which any of its significant subsidiaries the properties or assets of the Company is subject and which is filed as an Exhibit to any filing with the Commission incorporated by reference into the Offering Memorandum, nor will such actions result in any violation of their respective properties are bound, or the charter documents or by-laws of the Company or Company, any of its significant subsidiariesapplicable law, or any statute or any judgment, decree, order, rule order or regulation decree of any court or other governmental authority agency or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which body specifically naming the Company or any of its subsidiaries is a party properties or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumassets.
(xii) commencing Except (i) for the registration of the Securities and the Conversion Shares under the Act as contemplated by the Registration Rights Agreement, (ii) as may be expressly contemplated by the Transaction Documents and (iii) for such consents, approvals, authorizations, registrations or qualifications as may be required under applicable state securities laws or Blue Sky Laws or rules of the National Association of Securities Dealers, Inc. in connection with the Company’s taxable year ended December 31purchase and distribution of the Securities by the Initial Purchasers (as to which no opinion is expressed herein) no consent, 1998approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method consummation of operation, as represented by the Company, will permit the Company to continue to so qualifytransactions contemplated hereby.
(xiii) No To the best of such counsel’s knowledge and other than as set forth in the Offering Memorandum or incorporated by reference therein, there are no legal or governmental proceedings pending to which the Company is a party or of which any property or asset of the Company is the subject that, singularly or in the aggregate, if determined adversely to the Company, would prevent or adversely affect the ability of the Company to perform its obligations under this Agreement.
(xiv) Assuming the accuracy of the representations, warranties and agreements of the Company and of the Initial Purchasers contained in this Agreement, no registration of the Securities under the Securities Act or qualification of the Notes Indenture under the Trust Indenture Act is required in connection with the issuance and sale of the Notes to Securities by the Company and the initial resale of the Securities by the Initial Purchasers as in the manner contemplated by this Agreement and the Final Offering Memorandum or in connection with the initial (it being understood that no opinion is expressed as to any subsequent resale of the Notes by Securities or the Initial Purchasers in accordance with Section 8 of this AgreementUnderlying Common Stock).
(xv) The Company is not, and prior upon application of the proceeds as described under the caption “Use of Proceeds” in the Offering Memorandum will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder. Such counsel shall also have furnished to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement)Representatives a written statement, the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes addressed to the Initial Purchasers and dated such Closing Date, in form and substance satisfactory to the initial resale thereof Representatives, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Offering Memorandum and (iiiy) the due performance by the Initial Purchasers based on such counsel’s examination of the agreements set forth Offering Memorandum and such counsel’s investigations made in Section 8 hereof. In rendering any such opinionconnection with the preparation of the Offering Memorandum and “conferences with certain officers and employees of and with auditors for and counsel to the Company”, such counsel may relyhas no reason to believe that the Offering Memorandum, as of its date, contained, and on the Closing Date, contains any untrue statement of a material fact or omitted to matters of fact, state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. The foregoing opinion and statement may be qualified by a statement to the extent effect that such counsel deems properhas not independently verified the accuracy, on certificates of responsible officers completeness or fairness of the Company statements contained in the Offering Memorandum and public officials andtakes no responsibility therefor. In addition, the foregoing opinion may note that the Offering Memorandum has been prepared in the context of a Rule 144A transaction and not as to matters involving part of a registration statement under the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law Securities Act and does not contain all of the State of Delaware, to information that would be required in a registration statement under the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Securities Act.
(e) Fish & ▇▇▇▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP P.C. shall be delivered have furnished to the Representatives such counsel’s written opinion, as patent counsel to the Company, addressed to the Initial Purchasers and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) Fish & Neave P.C. shall have furnished to the Representatives such counsel’s written opinion, as patent counsel for to the Company, addressed to the Initial Purchasers covering matters and dated such Closing Dates, in form and in substance reasonably requested by the Initial Purchasers. References satisfactory to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateRepresentatives.
(bg) The Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. shall have furnished to the Representatives such counsel’s written opinion, as FDA regulatory counsel to the Company, addressed to the Initial Purchasers shall have received a legal opinion from and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(h) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇and ▇▇▇▇ LLP shall have received furnished to the Representatives such counsel’s written opinion as counsel for the Initial Purchasers, addressed to the Initial Purchasers and may rely upon dated such certificates and other documents and information Closing Date, with respect to such matters as it the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(ci) The Initial Purchasers At the time of the execution of this Agreement, the Representatives shall have received from PricewaterhouseCoopers Ernst & Young LLP a letter or letters datedletter, respectively, addressed to the date hereof Initial Purchasers and the Closing Datedated such date, in form and substance satisfactory to counsel for the Initial PurchasersRepresentatives (i) confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and the Rules and Regulations thereunder and (ii) stating the conclusions and findings of such firm with respect to the financial statements and certain financial information contained in or incorporated by reference in the Offering Memorandum.
(dj) On the Closing Date, the Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Initial Purchasers and dated such Closing Date confirming, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum as of a date not more than three business days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by its letter delivered to the Representatives concurrently with the execution of this Agreement pursuant to Section 6(g).
(k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Representatives a certificate, dated such Closing a certificate Date, of its Chairman of the Board, its President or its and Chief Executive Officer or a Vice President and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
stating that (i) such officers have carefully examined the Offering Memorandum and, in their opinion, the Offering Memorandum, as of its date and such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (ii) since the date of the Offering Memorandum, no event has occurred that should have been set forth in a supplement or amendment to the Offering Memorandum, (iii) to the best of their knowledge after reasonable investigation, as of such Closing Date, the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed complied with all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date; and
, and (iiiv) subsequent to the respective dates date of the most recent financial statements included in the Offering Memorandum there has been no material adverse change in the financial position or results of operation of the Company, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Company, except as set forth in the Offering Memorandum as of which information is given the date hereof.
(l) The Company shall not have sustained since the date of the latest audited financial statements included or incorporated by reference in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties its business from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, and order or decree, otherwise than as set forth or contemplated in the Offering Memorandum (ii) since such date there has shall not have been any materially adverse change (including, without limitation, a change in management the capital stock or control)long-term debt of the Company or any change, or any development involving a prospective materially adverse change, in or affecting the condition (financial or otherwise)business, general affairs, management, earnings, properties, business affairs or business prospectsfinancial position, stockholders’ equity, net worth equity or results of operations of the Company Company, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any of its subsidiaries, taken as a whole, except in each such case as described in clause (i) or (ii), is, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by in the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum.
(em) Subsequent to the execution No action shall have been taken and delivery no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body that would, as of this Agreement and prior to the such Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended prevent the issuance or potential downgrading or of any review for a possible change that does not indicate the direction sale of the possible change, in Securities or the rating accorded any Underlying Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company’s securities ; and no injunction, restraining order or order of any other nature by any “nationally recognized statistical rating organization”, as such term is defined for purposes federal or state court of Rule 436(g)(2) under the Act.
(f) The Indenture competent jurisdiction shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information issued as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as Closing Date which would prevent the Initial Purchasers shall reasonably request.issuance or sale of the Securities or
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, discovered and disclosed to the effect that:
(i) Company prior to or on such counsel has no reason to believe Delivery Date that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or the date of such opinion, included any amendment or includes supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material fact or omitted or omits to state any fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and each of its “significant subsidiaries” information that they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇▇ Godward LLP shall have furnished to the Initial Purchasers their written opinion, as defined counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in Rule 1.02(wform and substance satisfactory to the Initial Purchasers, to the effect that:
(i) of Regulation S-X under the Exchange Act) have The Company has been duly organized and are is validly existing as corporations a corporation in good standing under the laws of their respective jurisdictions the State of incorporation and are Delaware, and, based solely on certificates of public officials, is duly qualified to transact do business as foreign corporations and are is in good standing under as a foreign corporation in each jurisdiction in which its ownership or lease of property or the laws conduct of all other jurisdictions its business requires such qualification, except where such counsel has been advised that the failure to be so qualified would amount to not have a material liability adverse effect on the Company, whether or disability to not arising in the Company ordinary course of business, and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full has all corporate power and authority necessary to own, lease and operate their respective own or hold its properties and assets and conduct their respective the businesses in which it is engaged, as described in the Final Offering Memorandum; and, and to the knowledge of such counsel, the Company has no subsidiaries;
(ii) the Conversion Shares, which are authorized on the date hereof, have been duly and validly authorized and reserved for issuance upon conversion of the Notes by all necessary corporate power action and are free of preemptive rights; all Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable and free and clear of all liens, encumbrances, equities or claims imposed by or arising from actions of the Company;
(iii) The statements in the Offering Memorandum under the captions "Description of the Notes" and "Description of Capital Stock", insofar as they purport to enter into summarize the provisions of the Indenture, the Registration Rights Agreement, the Notes and the Common Stock (including the Conversion Shares) are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act;
(iv) There is no restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's certificate of incorporation or bylaws;
(v) To the knowledge of such counsel and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company is a party or of which any property or asset of the Company is the subject which, if determined adversely to the Company might have a material adverse effect on the Company or which might reasonably be expected to materially and adversely affect the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder; to the actual knowledge of such counsel, no such proceedings are overtly threatened or contemplated by governmental authorities or, except as set forth or contemplated in the Offering Memorandum, overtly threatened by others; and, to the actual knowledge of such counsel, the aggregate of all pending legal or governmental proceedings to which the Company is a party or of which any of its property or assets is the subject (other than the Company's patent applications currently pending before the U.S. Patent and Trademark Office or before any foreign governmental authority that administers the registration of patents) which are not described in the Offering Memorandum, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a material adverse effect on the Company.
(vi) The execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions issuance of the Notes and the Indenture, provide a fair summary of such provisions; Conversion Shares and the statements set forth consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificate of incorporation or bylaws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties or assets; and, except as may be required by the securities or "blue sky" laws of any state of the United States in connection with the sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company and the issuance of the Notes and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby;
(vii) No registration of the Notes or the Conversion Shares under the heading “Securities Act, and no qualification of the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Notes or in connection with the conversion of the Notes into Conversion Shares, in each case, in the manner contemplated by the Offering Memorandum, this Agreement and the Indenture;
(viii) The statements in the Offering Memorandum under the caption "Certain United States Federal Income Tax Consequences” in the Final MemorandumConsiderations", insofar as such statements they purport to constitute a summary summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material respects as would be to the extent required to be disclosed if such statements were contained in a prospectus pursuant to registration statement on Form S-3 under the Act and the Exchange Act and the respective rules and regulations thereunderSecurities Act;
(ivix) The Company is not an "investment company" within the execution and delivery meaning of this Agreement have been duly authorized by the Investment Company Act of 1940, as amended;
(x) The Company has all necessary corporate action right, power and authority to execute and deliver each of the Company Operative Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Notes and the Conversion Shares to the Initial Purchasers;
(xi) This Agreement has been duly authorized, executed and delivered by the Company;
(vxii) the execution and delivery of the The Indenture have has been duly authorized by the Company andauthorized, when duly executed and delivered by the Company (and, assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be constitutes a legal, legally valid and binding agreement of the Company, Company enforceable against the Company in accordance with its terms (subjectexcept as the enforceability thereof may be limited by bankruptcy, as to enforcement of remediesinsolvency, to applicable bankruptcyfraudulent transfer, reorganization, insolvency, moratorium and other similar laws relating to or other laws affecting creditors’ ' rights generally from time generally, subject to time general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in effect). The Indenture meets the requirements for qualification under the TIA.a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing;
(vixiii) the Notes have The Registration Rights Agreement has been duly authorized by all necessary corporate action of the Company andauthorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be constitutes a legal, valid and legally binding agreement of the Company, Company enforceable against the Company in accordance with its terms (subject, except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), by an implied covenant of good faith and fair dealing; and
(xiv) The Notes have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and the Delaware General Corporation Law and may state securities laws that it is relying, in respect of matters of New York law, upon Brown & Wood LLP, and in respect of matters of fact, upon certificates of officers of the Company, PROVIDED that such counsel shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with officers and other representatives of the Company, the Company's independent public policy considerationsaccountants, the Initial Purchasers and their counsel, at which the contents of the Offering Memorandum were discussed, and while such counsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (other than the financial statements, financial and statistical data and supporting schedules as to which such counsel shall make no statement), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ixd) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel and Secretary of the execution Company, shall have furnished to the Initial Purchasers his written opinion, addressed to the Initial Purchasers and delivery by dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that:
(i) The authorized, issued and outstanding capital stock of the Company, as of September 30, 1999, is as set forth in the Offering Memorandum under the column entitled "Actual" under the caption "Capitalization", and 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 nonassessable;
(ii) Except as disclosed in the Offering Memorandum, there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, and the performance by any shares of Common Stock pursuant to any agreement or other instrument to which the Company is a party known to such counsel; the issuance of its obligations underthe Conversion Shares, upon conversion of the Notes in accordance with the terms of the Indenture, will not be subject to the preemptive or other similar rights of any securityholder of the Company and
(iii) The execution, delivery and performance of this Agreement, the Registration Rights Agreement, the Indenture and the Notes, Registration Rights Agreement and the Exchange issuance of the Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Conversion Shares and the consummation of the other transactions herein contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease loan agreement or other material agreement or instrument, instrument known to such counsel, counsel to which the Company or any of its significant subsidiaries is a party or by which the Company is bound or to which any of its significant subsidiaries the property or any of their respective properties are bound, or the charter documents or by-laws assets of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such is subject. Such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes shall also have furnished to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreementa written statement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes addressed to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any dated such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that he has no reason to believe that the statements under the captions "Risk Factors--Our patents may not protect our products and our products may infringe on third-party patent rights" and "Patents and Proprietary Rights" in the Offering Memorandum, as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) Brown & Wood LLP, shall have furnished to the Initial Purchasers their written opinion, as counsel for to the Initial Purchasers, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers.
(df) With respect to the letter of ▇▇▇▇▇ & Young LLP delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished or caused to be furnished to the Initial Purchasers at on such Delivery Date a certificate, dated such Delivery Date and delivered on behalf of the Closing a certificate Company by one of its Chairman of the Board, its President or its Chief Executive Officer co-chief executive officers and its Chief Financial Officer chief financial officer, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect that:
(i) the representations The representations, warranties and warranties agreements of the Company in this Agreement Section 1 are true and correct as if made on of the date given and as of the Closing such Delivery Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory complied in all material respects with all its agreements contained herein to the Initial Purchasers and counsel for the Initial Purchasers. be performed prior to or on such Delivery Date;
(A) The Company shall furnish to has not sustained since the Initial Purchasers such conformed copies date of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.latest au
Appears in 1 contract
Sources: Purchase Agreement (Inhale Therapeutic Systems Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from ▇the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ Chance US & ▇▇▇▇ LLP, counsel for the CompanyIssuers, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchaser, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light Each of the circumstances under which they were madeCompany, not misleading.
Aerosol Services Company, Inc. (ii"AEROSOL") the Company and each of its “significant subsidiaries” Kolmar Laboratories, Inc. (as defined in Rule 1.02(w"KOLMAR") of Regulation S-X under the Exchange Act) have been duly organized and are is validly existing as corporations and in good standing under the laws of their its respective jurisdictions jurisdiction of incorporation and are duly qualified has all requisite corporate power and corporate authority to transact business as foreign corporations (a) enter into and are in good standing perform its obligations under the laws of all other jurisdictions where such counsel has been advised that Indenture, this Agreement and the failure to be so qualified would amount to a material liability or disability to the Company Registration Rights Agreement and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to (b) own, lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum. Each of the Company, Aerosol and Kolmar is duly qualified to do business as a foreign corporation in good standing in the jurisdictions listed on Schedule II hereto.
(ii) The Company has all requisite corporate power and corporate authority to execute, deliver and perform each of its obligations under the Notes, the Exchange Notes and the Company Private Exchange Notes; each of Aerosol and Kolmar has all requisite corporate power and corporate authority to enter into this Agreementexecute, deliver and perform each of its obligations under its Guarantee, its Exchange Notes Guarantee and its Private Exchange Notes Guarantee; the Registration Rights Agreement and Inden- ture meets the requirements for qualification under the TIA as in effect on the date of such opinion; the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out has been duly authorized by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final MemorandumAerosol and Kolmar and, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been when duly executed and delivered by each Issuer (assuming the Company;
(v) the due authorization, execution and delivery thereof by the Trustee), will constitute the valid and legally binding agreement of each Issuer, enforceable against each Issuer in accordance with its terms, except (i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (ii) that such firm need express no opinion as to the enforceability or effect of Section 4.09 of the Indenture Indenture.
(iii) The Notes have each been duly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery thereof of the Indenture by the Trustee), the Indenture will be a legal, valid Trustee and binding agreement due authentication and delivery of the Company, enforceable against Notes by the Company Trustee in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effectthe Indenture). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; Indenture and enforceable against the Company in accordance with their terms, except (i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (ii) that such firm need express no holder opinion as to the enforceability or effect of securities Section 4.09 of the Company has any right which has not Indenture.
(iv) The Guarantees by each of Aerosol and Kolmar have been fully exercised or waived to require duly authorized by Aerosol and Kolmar, respectively, and, when duly executed and delivered by Aerosol and Kolmar, respectively, in accordance with the Company to register terms of this Agreement (assuming the offer or sale of any securities owned by such holder under the Act in the offering due authorization, execution and delivery of the Notes contemplated Indenture by this Agreement the Trustee and the Indenture and the Guarantee by Piedmont), will be valid and binding obligations of the Guarantors enforceable against each of the Guarantor in accordance with their terms, ex-
(i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and (ii) that such firm need express no opinion as to the Exchange Offer contemplated by enforceability or effect of Section 4.09 of the Registration Rights Agreement;Indenture.
(viiv) the The Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when if the Exchange Notes and the Private Exchange Notes are were duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture on the date of such opinion (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will they would be the legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms terms, except (subjecti) to the extent that the enforceability thereof may be limited by (A) bankruptcy, as insolvency, (including, without limitation, all laws relating to enforcement of remedies, to applicable bankruptcyfraudulent transfers), reorganization, insolvency, moratorium and other similar laws now or other laws hereafter in effect relating to or affecting creditors’ ' rights generally from time and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (ii) that such firm need express no opinion as to time in effect)the enforceability or effect of Section 4.09 of the Indenture.
(viiivi) The Exchange Notes Guarantees and the Company has all requisite corporate power Private Exchange Notes Guarantees of Aerosol and authority to executeKolmar have been duly authorized by Aerosol and Kolmar, deliver respectively, and, if the Exchange Notes Guarantees and perform its obligations under the Private Exchange Notes Guarantees were duly executed and delivered by Aerosol and Kolmar, respectively, in accordance with the terms of the Registration Rights Agreement; Agreement and the Indenture on the date of such opinion (assuming due authorization, execution and delivery of the Indenture by the Trustee and the Indenture, the Exchange Note Guarantee and the Piedmont Exchange Note Guarantee by Piedmont), they would be valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, except (i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and (ii) that such firm need express no opinion as to the enforceability or effect of Section 4.09 of the Indenture.
(vii) The Registration Rights Agreement has been duly authorized by each of the Company Company, Aerosol and Kolmar and, when duly executed and delivered by each of the Company Company, Aerosol and Kolmar (assuming due authorization, execution and delivery thereof by the Initial PurchasersPurchaser and Piedmont), will be a legal, valid and binding agreement of each of the CompanyIssuers, enforceable against each of the Company Issuers in accordance with its terms terms, except (subjecti) to the extent that the enforceability thereof may be limited by (A) bankruptcy, as insolvency (including, without limitation, all laws relating to enforcement of remedies, to applicable bankruptcyfraudulent transfers), reorganization, insolvency, moratorium and other similar laws now or other laws hereafter in effect relating to or affecting creditors’ ' rights generally from time to time and (B) general principles of equity (regardless of whether enforcement is sought in effect a proceeding at law or in equity) and except (ii) that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(viii) This Agreement and the consummation by each of the Company, Aerosol and Kolmar of the transactions contemplated hereby have been duly authorized by each of the Company, Aerosol and Kolmar. This Agreement has been duly executed and delivered by each of the Company, Kolmar and Aerosol.
(ix) The Indenture, the Notes, the Guarantees and the Registration Rights Agreement, conform in all material respects to the descriptions thereof contained in the Final Memorandum.
(x) The statements set forth under the headings "Risk Factors -- Subordination of the Notes and the Guarantees," "Description of Certain Terms of the Preferred Stock and the Warrant Agreement," "Exchange Offer; Registration Rights" and "Description of Notes" in the Final Memorandum, insofar as such statements constitute a summary of legal matters, documents or proceedings referred to therein, fairly present such legal matters, documents and proceedings in all material respects.
(xi) The execution and delivery by the Company ofCompany, Kolmar and the performance by the Company Aerosol of its obligations under, this Agreement, the Registration Rights AgreementAgreement and the Indenture, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering issuance and sale of the Notes Securities to the Initial Purchasers by Purchaser and the Company performance of the Company's, Kolmar's and Aerosol's respective obligations pursuant to this Agreement, the compliance by the Company with the other provisions of this Registration Rights Agreement and the consummation of the other transactions herein contemplated do Indenture (i) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under the Articles of Incorporation or similar organizational document or bylaws of any of the Company, Kolmar or Aerosol, (ii) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default (with the passage of time or otherwise) under, or result in the imposition or creation of (or the obligation to create or impose) any indenturesecurity interest, mortgage, deed pledge, claim, lien, encumbrance or adverse interest of trustany nature (each, lease a "Lien") on any properties of the Company, Kolmar or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries Aerosol or any of their respective properties are boundsubsidiaries or an acceleration of indebtedness pursuant to any of the agreements listed on Schedule III hereto, where, in any such instance, such breach, default, Lien, acceleration of indebtedness or conflict could reasonably be expected to have, individually or in the charter documents aggregate, a material adverse effect on the general affairs, management, business condition (financial or by-laws otherwise), prospects or results of operations of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefromSubsidiaries, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification taken as a real estate investment trust (“REIT”) under the Codewhole, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by will not conflict with or violate any Applicable Law (as hereinafter defined) or Applicable Order (as hereinafter defined), it being understood that we express no opinion as to any violation of any Applicable Law or Applicable Order as a result of the Initial Purchasers Purchaser's involvement, the involvement of any of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters Initial Purchaser's affiliates or the involvement of fact, subsequent purchasers of the Securities from the Initial Purchaser because of the Initial Purchaser's legal or regulatory status or because of other facts specifically pertaining to the extent Initial Purchaser, the Initial Purchaser's affiliates or such counsel deems properother purchasers. The term "Applicable Law" means any law, on certificates of responsible officers rule and regulation of the Company and public officials andUnited States of America, as to matters involving the application State of laws of any jurisdiction other than California, the State of New York or the United States or the and any General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing DateDelaware that, in form and substance satisfactory our experience, is normally applicable to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman transactions of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or type contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing DateAgreement, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by and the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing DateIndenture, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificatesprovided, documents or other information that we express no opinion as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request."blue sky" or state
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the each Initial Purchasers Purchaser to purchase and pay for the Notes shall, Securities to be subjectpurchased by it on the Closing Date hereunder are subject to the fulfillment, in the such Initial Purchasers’ Purchaser's sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) templated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for those purposes shall have been commenced or shall be pending or, to the knowledge of the Issuers, threatened. No order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Issuers, threatened.
(b) On the Closing Date, the Issuers shall have delivered to the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLPtrue, counsel for correct and complete copy of the Company, dated New Revolving Credit Facility; on and as of the Closing Date, Date (after giving effect to the effect that:consummation of the transactions contemplated by this Agreement), there shall not exist any condition which would constitute a Default or an Event of Default (as defined in the New Revolving Credit Facility).
(c) Subsequent to the date hereof, (i) such counsel has no reason to believe that except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (other than financial or other), business, prospects, properties, assets, net worth or results of operations of the financial statements Company and other financial information contained thereinthe Subsidiaries, taken as to which such counsel need express no opiniona whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) the Final Memorandum, as of its date or the date of such opinion, included or includes Offering Memorandum shall not contain any untrue statement of a material fact or omitted or omits omit to state any 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.
(ii) , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where correct any such counsel has been advised that the failure to be so qualified would amount to a material liability misstatement or disability to the Company and its subsidiariesomission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers’ representations in Section 8 and those , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateSecurities.
(bd) The Initial Purchasers shall have received a legal on the Closing Date an opinion from ▇▇▇▇▇▇ ▇▇of Kirk▇▇▇▇ & ▇lli▇, ▇▇▇▇▇▇ LLPunsel for the Company, counsel for dated the Closing Date and addressed to the Initial Purchasers, dated substantially in the Closing Date, with respect form of Exhibit B hereto.
(e) spect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersrequest.
(cf) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or "cold comfort" letters datedaddressed to the Initial Purchasers, respectively, and dated the date hereof and the Closing Date, from Ernst & Young LLP, substantially in form and substance satisfactory to counsel for the forms heretofore approved by the Initial Purchasers.
(di) There shall not have been any change in the capital stock of the Company or any Subsidiary nor any material increase in the short-term or long-term debt of the Company or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole; (iii) all the representations and warranties of the Issuers contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; and (iv) the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of each of the Issuers (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(g) and in Section 7(h) hereof.
(h) The Issuers shall not have failed at or prior to the Closing Date to have performed or complied with any of their respective agreements herein contained and required to be performed or complied with by them hereunder at or prior to the Closing Date.
(i) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any class of securities of the Issuers (including the Securities), or (ii) it is reviewing its ratings assigned to any class of securities of the Issuers (including the Securities) with a view to possible downgrading, with negative implications or direction not determined.
(k) The Issuers shall have taken all necessary acts to (i) repay all of the indebtedness for money borrowed of the Company and the Subsidiaries indicated as being repaid in the Offering Memorandum under the caption "Unaudited Pro Forma Consolidated Financial Information" immediately prior to the issuance of the Securities and (ii) terminate the related credit agreements.
(l) The Company shall have received a solvency opinion from Valuation Research, which solvency opinion shall be in form and substance reasonably satisfactory to the Initial Purchasers.
(m) Roma Restaurant Holdings, Inc. ("Holdings") shall have received at least $27.0 million of cash equity proceeds pursuant to the Recapitalization Agreement (as defined in the Offering Memorandum).
(n) Except as disclosed in the Offering Memorandum, Holdings shall have contributed all of its assets and properties to the Company.
(o) The Issuers shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer such further certificates and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct customary closing documents as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Companyrequested. All such opinions, certificates, letters and other documents delivered pursuant to this Agreement will comply be in compliance with the provisions hereof only if they are reasonably satisfactory in all material respects form and substance to the Initial Purchasers Purchasers. Any certificate or document signed by any officer of an Issuer and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers. The Company , shall furnish be deemed a representation and warranty by the Issuers to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as to the Initial Purchasers shall reasonably requeststatements made therein.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, discovered and disclosed to the effect that:
(i) Company prior to or on such counsel has no reason to believe Delivery Date that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or the date of such opinion, included any amendment or includes supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material fact or omitted or omits to state any fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and each of its “significant subsidiaries” information that they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇▇ Godward LLP shall have furnished to the Initial Purchasers their written opinion, as defined counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in Rule 1.02(wform and substance satisfactory to the Initial Purchasers, to the effect that:
(i) of Regulation S-X under the Exchange Act) have The Company has been duly organized and are is validly existing as corporations a corporation in good standing under the laws of their respective jurisdictions the State of incorporation and are Delaware, and, based solely on certificates of public officials, is duly qualified to transact do business as foreign corporations and are is in good standing under as a foreign corporation in each jurisdiction in which its ownership or lease of property or the laws conduct of all other jurisdictions its business requires such qualification, except where such counsel has been advised that the failure to be so qualified would amount to not have a material liability or disability to adverse effect on the Company Company, and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full has all corporate power and authority necessary to own, lease and operate their respective own or hold its properties and assets and conduct their respective businesses the business in which it is engaged; and, to the knowledge of such counsel, the Company has no subsidiaries;
(ii) The Company has an authorized capitalization as described set forth in the Final Offering Memorandum, and all of the issued shares of capital stock of the Company has corporate power have been duly and validly authorized and conform to enter into the description thereof contained in the Offering Memorandum in the section entitled "Description of Capital Stock";
(iii) The Conversion Shares that are authorized on the date hereof have been duly authorized and validly reserved for issuance upon conversion of the Debentures and are free of preemptive rights; and the Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable;
(iv) The statements in the Offering Memorandum under the captions "Description of the Debentures" and "Description of Capital Stock", insofar as they purport to summarize the provisions of the Indenture, the Registration Rights Agreement, the Debentures and the Common Stock (including the Conversion Shares) are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act;
(v) There are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's certificate of incorporation or bylaws;
(vi) To the knowledge of such counsel and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company is a party or of which any property or assets of the Company is the subject which, if determined adversely to the Company, might have a material adverse effect on the financial position, stockholders' equity, results of operations or business of the Company; and, to the actual knowledge of such counsel, no such proceedings are overtly threatened or contemplated by governmental authorities or threatened by others;
(vii) The execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and issuance of the Notes to be carried out by it; all Debentures and the Conversion Shares and the consummation of the issued transactions contemplated hereby and outstanding shares of capital stock of each thereby do not result in any violation of the Company’s significant subsidiariesprovisions of the certificate of incorporation or bylaws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties or assets; and, except as otherwise set forth may be required by the securities or "blue sky" laws of any state of the United States in connection with the Final Memorandumsale of the Debentures, are owned beneficially no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company free and clear the issuance of any perfected security interests or, to the best knowledge Debentures and the Conversion Shares and the consummation of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsthe transactions contemplated hereby and thereby;
(iiiviii) No registration of the statements set forth Debentures or the Conversion Shares under the heading “Description Securities Act, and no qualification of Notes” the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Debentures or in connection with the conversion of the Debentures into Conversion Shares, in each case, in the Final manner contemplated by the Offering Memorandum, this Agreement and the Indenture;
(ix) The statements in the Offering Memorandum under the caption "Certain United States Federal Income Tax Considerations", insofar as such statements they purport to summarize certain provisions constitute summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material respects as would be to the extent required to be disclosed if such statements were contained in a prospectus pursuant to registration statement on Form S-3 under the Act and the Exchange Act and the respective rules and regulations thereunderSecurities Act;
(ivx) The Company is not an "investment company" within the execution and delivery meaning of this Agreement have been duly authorized by the Investment Company Act of 1940, as amended;
(xi) The Company has all necessary corporate action right, power and authority to execute and deliver each of the Company Operative Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Debentures and the Conversion Shares to the Initial Purchasers;
(xii) This Agreement has been duly authorized, executed and delivered by the Company;
(vxiii) the execution and delivery of the The Indenture have has been duly authorized by the Company andauthorized, when duly executed and delivered by the Company (and, assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be constitutes a legal, legally valid and binding agreement of the Company, Company enforceable against the Company in accordance with its terms (subjectexcept as the enforceability thereof may be limited by bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and other similar laws relating to or other laws affecting creditors’ ' rights generally from time generally, subject to time general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in effect). The Indenture meets the requirements for qualification under the TIA.a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing;
(vixiv) the Notes have The Registration Rights Agreement has been duly authorized by all necessary corporate action of the Company andauthorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be constitutes a legal, valid and legally binding agreement of the Company, Company enforceable against the Company in accordance with its terms (subject, except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), by an implied covenant of good faith and fair dealing; and
(xv) The Debentures have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and the Delaware General Corporation Law and may state securities laws that it is relying, in respect of matters of New York law, upon ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, and in respect of matters of fact, upon certificates of officers of the Company, PROVIDED that such counsel shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with officers and other representatives of the Company, the Company's independent public policy considerationsaccountants, the Initial Purchasers and their counsel, at which the contents of the Offering Memorandum were discussed, and while such counsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (other than the financial statements, financial and statistical data and supporting schedules as to which such counsel shall make no statement), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ixd) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel and Secretary of the execution Company, shall have furnished to the Initial Purchasers his written opinion, addressed to the Initial Purchasers and delivery by dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that:
(i) All of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable;
(ii) Except as disclosed in the Offering Memorandum, there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, and the performance by any shares of Common Stock pursuant to any agreement or other instrument to which the Company is a party known to such counsel; and
(iii) The execution, delivery and performance of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes Registration Rights Agreement and the Private Exchange Notes, the issuance, offering and sale issuance of the Notes to Debentures and the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Conversion Shares and the consummation of the other transactions herein contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease loan agreement or other material agreement or instrument, instrument known to such counsel, counsel to which the Company or any of its significant subsidiaries is a party or by which the Company is bound or to which any of its significant subsidiaries the property or any of their respective properties are bound, or the charter documents or by-laws assets of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such is subject. Such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes shall also have furnished to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreementa written statement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes addressed to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any dated such opinionDelivery Date, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope substance satisfactory to counsel for the Initial Purchasers, upon to the opinion effect that he has no reason to believe that the statements under the captions "Risk Factors--Our patents may not protect our products and our products may infringe on third-party patent rights" and "Patents and Proprietary Rights" in the Offering Memorandum, as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇▇, shall have furnished to the Initial Purchasers their written opinion, as counsel for to the Initial Purchasers, dated the Closing Date, with respect addressed to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering and dated such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(df) With respect to the letter of Ernst & Young LLP delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished or caused to be furnished to the Initial Purchasers at on such Delivery Date a certificate, dated such Delivery Date and delivered on behalf of the Closing a certificate Company by one of its Chairman of the Board, its President or its Chief Executive Officer co-chief executive officers and its Chief Financial Officer chief financial officer, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect that:
(i) the representations The representations, warranties and warranties agreements of the Company in this Agreement Section 1 are true and correct as if made on of the date given and as of the Closing such Delivery Date; and the Company has performed complied in all covenants and material respects with all its agreements and satisfied all conditions on its part contained herein to be performed or satisfied at or prior to the Closing or on such Delivery Date; and;
(iiA) subsequent to The Company has not sustained since the respective dates as date of which information is given the latest audited financial statements included in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties its business from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, order or decree, except (x) as set forth or contemplated in the Offering Memorandum and (y) for operating losses incurred in the ordinary course of business, or (B) since such date there has not been any materially adverse change (including, without limitation, a change in management the capital stock or controllong-term debt of the Company (except for issuances of shares of Common Stock upon exercise of outstanding options described in the Offering Memorandum or pursuant to Authorized Grants), or any change, or any development involving a prospective materially adverse change, in or affecting the condition (financial or otherwise)general affairs, management, earnings, properties, business affairs or business prospectsfinancial position, stockholders’ equity, net worth ' equity or results of operations of the Company or any of its subsidiaries, taken as a wholeCompany, except in each case as described in set forth or contemplated by in the Final Memorandum (exclusive of any amendment or supplement thereto).Offering Memorandum; and
(eiii) Subsequent to Such officer has carefully examined the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changeOffering Memorandum and, in such officer's opinion (A) the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Offering Memorandum,
Appears in 1 contract
Sources: Purchase Agreement (Inhale Therapeutic Systems Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes Securities shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Chance US ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the CompanyIssuer and the Guarantors, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light Each of the circumstances under which they were madeIssuer and the Guarantors is duly incorporated, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations and in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation and are is duly qualified to transact do business as a foreign corporations and are corporation in good standing under in each jurisdiction in the laws of all other jurisdictions United States in which they own or lease properties, or conduct any business, so as to require such qualification, except where such counsel has been advised that the failure to be so qualified qualify would amount to a material liability not, individually or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandumaggregate, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and have a Material Adverse Effect.
(ii) All of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each the Issuer and the Guarantors have been duly authorized and validly issued, are fully paid and nonassessable and all of the Company’s significant subsidiaries, except as otherwise set forth in capital stock of the Final Memorandum, are Issuer and the Subsidiary Guarantor is owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;Parent.
(iii) Each of Issuer and the statements set forth Guarantors has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and each of the heading “Description of Notes” in other Operative Documents to which it is a party and to consummate the Final Memorandumtransactions contemplated hereby and thereby, insofar as such statements purport including, without limitation, the corporate power and authority to summarize certain provisions of issue, sell and deliver the Notes and the IndentureGuarantees, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandumas applicable, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed contemplated by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;this Agreement.
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the This Agreement has been duly and validly authorized, executed and delivered by the Company;Issuer and the Guarantors.
(v) the execution and delivery of the The Indenture have has been duly and validly authorized by the Company Issuer and the Guarantors and, when duly executed and delivered by the Company in accordance with its terms (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, the valid and legally binding agreement of each of the CompanyIssuer and the Guarantors, enforceable against each of the Company Issuer and the Guarantors in accordance with its terms (subjectterms, except as to enforcement of remediessuch enforceability may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and other similar laws now or other laws hereafter in effect relating to or affecting creditors’ ' rights generally from time to time generally, by general equitable principles (regardless of whether such enforceability is considered in effect). The a proceeding in equity or at law) or by the discretion of the court before which any proceeding therefor may be brought; and the Indenture meets the requirements for qualification under the TIA.
(vi) When issued and authenticated in accordance with the Notes have been duly authorized by all necessary corporate action terms of the Company and, on Indenture and as of delivered against payment therefor in accordance with the Closing Dateterms hereof, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, legally valid and binding obligations of the CompanyIssuer, enforceable against the Issuer in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder , except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, by general equitable principles (regardless of securities whether such enforceability is considered in a proceeding in equity or at law) or by the discretion of the Company has court before which any right which has not been fully exercised or waived to require proceeding therefor may be brought.
(vii) When issued and authenticated in accordance with the Company to register the offer or sale of any securities owned by such holder under the Act in the offering terms of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by Indenture, the Registration Rights Agreement;
(vii) , the Exchange Offer and the Private Exchange, the Exchange Notes and the Private Exchange Notes will be the legally valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms and entitled to the benefits of the Indenture, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by the discretion of the court before which any proceeding therefor may be brought.
(viii) The Guarantees have been duly and validly authorized for issuance and sale to the Initial Purchasers by the CompanyGuarantors and, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company validly authorized, executed, issued and authenticated in accordance with the terms of the Registration Rights Agreement Indenture and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee delivered against payment therefor in accordance with the Indenture)terms hereof, will be the legal, legally valid and binding obligations of each of the CompanyGuarantors, enforceable against each of the Guarantors in accordance with their terms (subjectand entitled to the benefits of the Indenture, except as to enforcement of remediessuch enforceability may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and other similar laws now or other laws hereafter in effect relating to one affecting creditors’ ' rights generally from time to time generally, by general equitable principles (regardless of whether such enforceability is considered in effect)a proceeding in equity or at law) or by the discretion of the court before which any proceeding therefor may be brought.
(viiiix) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the The Registration Rights Agreement has been duly authorized by the Company Issuer and the Guarantors and, when duly executed and delivered by the Company Issuer and the Guarantors in accordance with its terms (assuming the due authorization, execution and delivery thereof by the Initial Purchasersother parties thereto), will be a legal, the legally valid and binding agreement obligation of the CompanyIssuer and each of the Guarantors, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by the Company discretion of the court before which any proceeding therefor may be brought.
(x) The Global Bank Facility has been duly authorized by the Issuer and the guarantors thereof and, when duly executed and delivered by the Issuer and the guarantors thereof in accordance with its terms (subjectassuming the due execution and delivery thereof by the other parties thereto), will be the legally valid and binding obligation of the Issuer and each of the guarantors thereof, enforceable against each of them in accordance with its terms, except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder such enforceability may be limited by federal bankruptcy, insolvency, reorganization, moratorium and state securities other similar laws and public policy considerations)now or hereafter in effect relating to or affecting creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by the discretion of the court before which any proceeding therefor may be brought.
(ixxi) The statements set forth in the execution Final Memorandum under the captions "Principal Shareholders," "Business--Tobacco-Properties," "Business--Wool-- Properties, "Business-Legal Proceedings" and delivery by "Private Placement," insofar as they purport to summarize matters of United States law or other legal matters, fairly and accurately summarize such laws and regulations in all material respects.
(xii) The statements in the Company ofFinal Memorandum under the headings "Description of the Global Bank Facility," "The Refinancing Plan," "Description of the Notes" and "Exchange Offer and Registration Rights," insofar as such statements purport to summarize certain provisions of the Indenture, the Notes, the Guarantees, the Exchange Notes, the Registration Rights Agreement and the Global Bank Facility and subject to the limitations contained in such statements, provide a fair and accurate summary in all material respects of such provisions of such agreements.
(xiii) The execution, delivery and performance by the Company Issuer and each of its obligations the Guarantors of the Purchase Agreement, each of the other Operative Documents and the Global Bank Facility (to the extent a party thereto) and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchasers) do not and will not conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of or cause an acceleration of any obligation under, this Agreementor result in the imposition or creation of (or the obligation to create or impose) a Lien (other than any Lien imposed or created under the Global Bank Facility or disclosed in the Offering Memorandum) on any properties or assets of the Issuer or any Guarantor with respect to (i) the terms or provisions of any Contract (which, based solely on representations of the Issuer and the Guarantors are the only Contracts the termination of which would result in a Material Adverse Effect) known to such counsel to which the Issuer or any Guarantor is a party, except for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws (or similar organizational document) of the Issuer or any Guarantor, or (iii) (assuming compliance by the Ini- tial Purchasers with the Act and all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any statute, rule or regulation known to such counsel to be of general applicability to, or any judgment, decree or order known to such counsel to be applicable to, the Issuer or any Guarantor or any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(xiv) To the knowledge of such counsel, no consent, waiver, approval, authorization or order of or filing, registration, qualification, license or permit of or with any court or governmental agency or body of the United States or the State of North Carolina or any third party is required for the issuance and sale by the Issuer and the Guarantors of the Securities to the Initial Purchasers or the consummation by the Issuer and the Guarantors of the other transactions contemplated hereby, including the creation and perfection of the contemplated security interest in the Collateral, except (i) in connection with the registration under the Act of the Exchange Notes and the Guarantees of the Exchange Notes pursuant to the Registration Rights Agreement, (ii) the qualification of the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or under the TIA in connection with the exchange offer contemplated by registration of the Registration Rights AgreementExchange Notes, (iii) such as may be required under Blue Sky laws, as to which such counsel need express no opinion and (iv) those which have previously been obtained.
(xv) To the knowledge of such counsel, there are no legal or (y) conflict with governmental proceedings involving or result in a breach or violation of affecting any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company Issuer or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries Guarantors or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to assets which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not so described in the Final Memorandum or Memorandum, nor are there any statutes, regulations, material contracts or other documents that which would be required to be described in a prospectus pursuant to the Act that are not so described or incorporated in the Final Memorandum.
(xiixvi) commencing with None of the Company’s taxable year ended December 31Issuer or any of the Guarantors is, 1998, or (assuming that the Company was organized Securities are sold on the date hereof as provided in the Purchase Agreement and has operated proceeds from such sale are applied as described in conformity with the requirements for qualification as a real estate investment trust (“REIT”) Final Memorandum under the Codecaption "Use of Proceeds") will on the date of such opinion be, and an "investment company" as such term is defined in the Company’s present and proposed method Investment Company Act of operation1940, as represented by the Company, will permit the Company to continue to so qualifyamended.
(xiiixvii) No registration under the Act of the Notes Securities is required in connection with the sale of the Notes Securities to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement)Statement, the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes Securities in the initial resale thereof are (x) qualified institutional buyers as defined in Rule 144A promulgated under the Act or (“QIBs”v) accredited investors as defined in Rule 501(a) (1), (2), (3) or (B7) that promulgated under the offer Act or sale of (z) reasonably believed by the Notes Initial Purchasers to be persons other than U.S. Persons (as such term is made in an offshore transaction as defined in Regulation SS under the Act) to whom such sale may be made in reliance on the exemption from registration provided by Regulation S under the Act, (ii) the accuracy and completeness of the Initial Purchasers’ ' representations in Section 8 and those of the Company Issuers and the Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes Securities to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof.
(xviii) No securities of the same class (within the meaning of Rule 144A under the Act) as the Notes are listed on a national securities exchange registered under Section 6 of the Exchange Act or are quoted in a United States automated inter-dealer quotation system.
(xix) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
(xx) On the Closing Date, the ownership of the Parent's subsidiaries, will be such that all of its tobacco operating subsidiaries will be direct or indirect subsidiaries of the Issuer and all of its wool operating subsidiaries will be direct or indirect subsidiaries of the Subsidiary Guarantor; PROVIDED that Standard Wool (UK) Limited will be wholly owned by the Issuer and approximately 19.6% of the capital stock of Standard Wool France will be owned by the Issuer. At the time the foregoing opinion is delivered, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall additionally state that it has participated in conferences with officers and other representatives of the Issuer and the Guarantors, representatives of the independent public accountants for the Issuers representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsections (xi) and (xii), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or on the Closing Date, 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 contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). In rendering any such opinionthe foregoing opinions, such counsel ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP may rely, as to matters of fact, to the extent such counsel deems proper, on certificates upon the representations and certifications of responsible officers of the Company Parent, the Issuer and the Subsidiaries or of public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasersofficials. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared by the Issuer in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Datedate, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after opinion, dated as of the Closing Date.
(h) On or before the Closing Date, Date and addressed to the Initial Purchasers and Purchasers, of Rosenman & Colin LLP, New York counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from Issuer and the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Guarantors,
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Senior Subordinated Notes shallas provided herein, shall be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Subsidiary Guarantors contained herein as of in this Agreement shall be true and correct on the date hereof and as of each Closing Date, with the same force and effect as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants date hereof and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, respectively. Each of the Company and the Subsidiary Guarantors shall have performed or complied with its obligations and agreements and satisfied the conditions to be performed, complied with or satisfied by it on or prior to the Closing Date.
(1) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 9:00 a.m., New York City time, on the day following the date of this Agreement, or at such later date and time as to which the Initial Purchasers may approve;
(2) No action shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLPbeen taken and no statute, counsel for the Companyrule, dated regulation or order shall have been enacted, adopted or issued by any governmental agency that would, as of the Closing Date, prevent the issuance of the Senior Subordinated Notes or the Note Guarantees;
(3) No injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date or, to the effect that:best knowledge of the Company, threatened against, the Company or the Subsidiary Guarantors which would prevent the issuance of the Senior Subordinated Notes or the Note Guarantors; and
(4) No stop order preventing the use of the Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of the Senior Subordinated Notes for sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(f) hereof shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending, threatened or, to the Company's knowledge contemplated.
(c) (1) (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or Since the date of such opinionthe latest balance sheet in the Offering Memorandum, included or includes any untrue statement of a material fact or omitted or omits to state there shall not have been any material fact necessary in order to make the statements thereinadverse change, or any development involving a prospective material adverse change, in the light assets, properties, business, results of operations, condition (financial or otherwise) or prospects, whether or not arising in the circumstances under which they were madeordinary course of business, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; , (ii) since the date of the latest balance sheet included in the Offering Memorandum, there shall not have been any material change, or any development that is reasonably likely to result in a material change, in the capital stock or in the long-term debt, or material increase in short-term debt, of the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except taken as otherwise a whole, from that set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements except as set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum, neither the Company nor any of its subsidiaries has sustained shall have any liability or obligation, direct or contingent, which is material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.;
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of ------------------------------------------------- the Initial Purchasers Purchaser to purchase and pay for the Notes shall, Shares shall be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on time that this Agreement is executed and as of each delivered by the parties hereto (the "Execution Time") and the Closing Date, to the accuracy of the statements of the Company’s 's officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(ai) On The Offering contemplated by this Agreement will become qualified or be exempt from qualification under the securities laws of the several states pursuant to subsection 5(b) not later than the Closing Date, and (ii) at the Initial Purchasers Closing Date no stop order suspending the sale of the Shares shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLPbeen issued, counsel and no proceeding for the Company, dated the Closing Date, to the effect that:that purpose shall have been initiated or threatened.
(ib) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the The Final Memorandum, as of its date or the date of such opinionany supplement thereto, included or includes will not contain any untrue statement of a material fact fact, or omitted or omits omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iic) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) The Initial Purchaser shall have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiariesreceived an opinion, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of dated the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersCompany, dated in the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. form of Exhibit E. In rendering any such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP such counsel may rely, as to matters of local law, on opinions of local counsel, and as to matters of fact on certificates of responsible officers of the Company and public officials, in which case their opinion is to state that they are so doing and that the Initial Purchaser is justified in relying on such opinions or certificates. References to the Final Memorandum in this paragraph (c) shall have received and may rely upon include any amendment or supplement thereto at the date of such certificates and other documents and information as it may reasonably request to pass upon such mattersopinion.
(cd) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers Deloitte & Touche LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the BoardPurchaser, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) they are independent accountants with respect to the representations and warranties Company within the meaning of Rule 101 of the Company in this Agreement are true and correct as if made on and as AICPA's Code of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; andProfessional Conduct;
(ii) subsequent to in their opinion, the respective dates as of which information is given audited financial statements examined by them and included in the Final Memorandum comply in form in all material respects with the applicable accounting requirements of the Act and the related published rules and regulations;
(exclusive iii) on the basis of any amendment or supplement theretocarrying out certain specified procedures (which do not constitute an examination made in accordance with generally accepted auditing standards) that would not necessarily reveal matters of significance with respect to the comments set forth in this paragraph (iii), neither a reading of the minute books of the stockholders, the board of directors and any committees thereof of the Company, and inquiries of certain officials of the Company nor who have responsibility for financial and accounting matters, nothing came to their attention that caused them to believe that at a specific date not more than three business days prior to the date of such letter, there were any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, changes in the condition (financial capital stock or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations total debt of the Company or any decreases in assets or stockholders' equity of its subsidiariesthe Company, taken as a wholein each case compared with amounts shown on the December 18, 1996 balance sheet included in the Final Memorandum; and, except in each case as described all instances for changes, decreases or increases set forth in or contemplated by such letter; and
(iv) they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are derived from the general accounting records of the Company and its consolidated subsidiaries and are included in the Final Memorandum (exclusive Memorandum, and have compared such amounts, percentages and financial information with such records of the Company and its consolidated subsidiaries and with information derived from such records and have found them to be in agreement, excluding any amendment questions of legal interpretation. In the event that the letters referred to above set forth any such changes, decreases or supplement thereto)increases which, in the reasonable discretion of the Initial Purchaser, are likely to result in a Material Adverse Effect, it shall be a further condition to the obligations of the Initial Purchaser such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Initial Purchaser deems such explanation unnecessary.
(e) Subsequent to The Initial Purchaser shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., counsel for the execution and delivery of this Agreement and prior to Initial Purchaser, such opinion or opinions, dated the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate with respect to the direction issuance and sale of the possible changeShares, in the rating accorded Final Memorandum (together with any amendment or supplement thereof or thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of the Company’s securities by any “nationally recognized statistical rating organization”, as enabling them to pass upon such term is defined for purposes of Rule 436(g)(2) under the Actmatters.
(f) The Indenture Initial Purchaser shall have been executed and delivered by all the parties thereto.
(g) On received a certificate, dated the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Dateof ▇▇▇▇▇▇▇ ▇.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request▇.
Appears in 1 contract
Sources: Purchase Agreement (Annaly Mortgage Management Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements Offered Securities hereunder and are subject to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Offered Securities in any jurisdiction designated by the Initial Purchasers Purchaser shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the financial condition, business, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchaser, would materially, adversely affect the market for the Offered Securities, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any officer or director of the Company or any of the Subsidiaries, which makes any statement made in the Offering Memorandum untrue in any material respect or which, in the opinion of the Company and its counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchaser, materially, adversely affect the market for the Offered Securities.
(c) You shall have received a legal on the Closing Date an opinion from of Milbank, Tweed, Hadl▇▇ & ▇cCl▇▇, ▇▇▇▇▇▇ Chance US LLP, ecial counsel for the Company, dated the Closing DateDate and addressed to you, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements The Company is a corporation duly incorporated and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have Delaware with full corporate power and authority to own, lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made Offering Memorandum (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither ;
(ii) Each Subsidiary is a corporation duly incorporated and validly existing and in good standing under the Company nor any laws of the jurisdiction of its subsidiaries has sustained any material loss or interference organization, with their respective businesses or full corporate power and authority to own, lease and operate its properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, to conduct its business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Offering Memorandum (exclusive of and any amendment or supplement thereto).;
(eiii) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction The authorized capital stock of the possible change, Company is as set forth under the caption "Capitalization" in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Offering Memorandum;
Appears in 1 contract
Sources: Purchase Agreement (Graham Field Health Products Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and again on the Closing Date as if made again on and as of such date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its covenants and agreements hereunder their obligations hereunder, and to each of the following additional terms and conditions:
(a) On The Offering Memorandum shall have been printed and copies made available to you not later than 5:00 p.m., New York City time, on the business day following the date of this Agreement, or at such later date and time as you may approve in writing.
(b) No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the Closing DateDate that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Latham & Watkins, counsel for the Initial Purchasers shall have received a legal opinion from Purchasers, is material o▇ ▇▇▇▇s t▇ ▇▇▇▇▇ Chance US LLPa fact which, counsel for in the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date opinion of such opinioncounsel, included or includes any untrue statement of a is material fact or omitted or omits to state any material fact and necessary in order to make the statements thereincontained in the Offering Memorandum, in the light of the circumstances under which they were made, not misleading.
(iic) the Company All corporate proceedings and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability legal matters incident to the Company authorization, form and its subsidiaries, taken as a whole; the Company and each validity of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Series A Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this AgreementGuarantees, the Registration Rights Agreement, the Indenture and the NotesOffering Memorandum, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes all other legal matters relating to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consenthereby, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may shall be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent reasonably satisfactory in form and scope all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) Skadden, Arps, Slate, Meagher & Flom (Illinois), special counsel to the opinion Company, and Dona▇▇ ▇. ▇ewi▇, ▇eneral Counsel of the Company, each shall have fu▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇ ▇▇▇ LLP shall be delivered Initial Purchasers their written opinions addressed to the Initial Purchasers and counsel for dated the Closing Date, in the form provided separately to the Initial Purchasers covering matters reasonably requested on the date hereof, with such changes, if any, as may be mutually agreed by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Dateparties.
(be) The Initial Purchasers shall have received a legal from Latham & Watkins such opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasersor opinions, dated the Closing Date, with respect to certain legal matters relating to this Agreement ▇▇▇▇ ▇esp▇▇▇ ▇▇ the issuance and such sale of the Series A Notes, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require. In rendering .
(f) The Company shall have entered into the Credit Facilities and other Credit Documents and the Initial Purchasers shall have received counterparts, conformed as executed, thereof, and the Company shall have borrowed such opinionamounts thereunder as contemplated in the Offering Memorandum; provided, that if the proceeds from the issuance of the Series A Notes are to be placed into a secured proceeds account at the Closing Date, then such Credit Facility and other Credit Documents may be entered into on or prior to the closing of the Acquisition.
(g) The Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(h) The Company and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(i) The Initial Purchasers shall have received from each of PricewaterhouseCoopers, LLP and PwC Deutsche Revision Aktiengesellschaft Wirtschaftsprufungsgesellschaft, independent certified public accountants, letters addressed to the Company or Schmalbach-Lubeca, as applicable, and Lehman Brothers Inc., Deutsch▇ ▇▇▇▇ ▇▇▇urities Inc., Banc of Americ▇ ▇▇▇▇rities LLC, Bank One Capital Markets, Inc., BNP Paribas Securities Corp., Dresdner Kleinwort Wasserstein-Grantchester, Inc., McDonald Investments Inc., SunTrust ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & rkets, Inc. and Wells Fargo Brokerage Services, LLC, substantially in the form here▇▇▇▇▇▇▇ LLP shall have received e approved by Lehman Brothers Inc., and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, dated the date hereof and the Closing Dat▇, (▇) confirming that they are independent accountants as required by the Securities Act and its Rules and Regulations or under the rules of the American Institute of Certified Public Accountants, as applicable, (ii) stating, as of the date of each letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five Business Days prior to the date of each letter), the procedures and findings of such firm with respect to the financial information and other matters covered by the letter delivered concurrently with this Agreement and (iii) with respect to the letter delivered on the Closing Date, confirming the procedures and findings set forth in form and substance the letter delivered concurrently with this Agreement; such letters shall be reasonably satisfactory to counsel for the Initial Purchasers.Lehman Brothers Inc.
(dj) The Company shall have furnished or caused to be furnished to the ▇▇ ▇▇e Initial Purchasers at a certificate, dated as of the Closing Date, of a certificate of its Chairman of the Board, its Vice President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
or Treasurer stating that (i) the representations representations, warranties and warranties agreements of the Company (after giving effect to all materiality qualifiers therein) and the Guarantors in this Agreement Section 2 are true and correct as if made on of such Closing Date and as giving effect to the consummation of the Closing Datetransactions contemplated by the Acquisition Agreement, the Credit Documents and this Agreement; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor and each Guarantor has complied in all material respects with all its agreements contained herein; and (iii) the conditions set forth in Sections 8(k) and 8(l) have been fulfilled.
(k) None of the Company or any of its subsidiaries has sustained shall have sustained, since the date of the latest audited financial statements included in the Offering Memorandum, (i) any material loss or interference with their respective businesses or properties its business from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, and order or decree, otherwise than as set forth or contemplated in the Offering Memorandum or (ii) since such date, there has shall not have been any materially adverse change (including, without limitation, a change in management the capital stock or controllong-term debt of the Company, any Material Adverse Effect otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), or development involving a prospective materially adverse changeis, in the condition (financial or otherwise)reasonable, management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations good faith judgment of the Company Initial Purchasers, so material and adverse as to make it impracticable or any inadvisable to proceed with the payment for and delivery of its subsidiaries, taken as a whole, except the Series A Notes being delivered on such Closing Date on the terms and in each case as described the manner contemplated in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum.
(el) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there (i) no downgrading shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s 's debt securities by any “"nationally recognized statistical rating organization”, ," as such that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities.
(fm) The Indenture Series A Notes shall have been executed and delivered designated for trading on the PORTAL Market; provided that the failure of the Series A Notes to be so listed shall not be due to any action taken or failure to act by all the parties theretoInitial Purchasers.
(gn) On If the proceeds from the issuance of the Series A Notes are to be placed into a secured proceeds account at the Closing Date, the Company shall have entered into a pledge, security and control agreement in a form reasonably satisfactory to Lehman Brothers. If such agreement is entered into, then on the Clo▇▇▇▇ ▇ate, Skadden, Arps, Slate, Meagher & Flom (Illinois), special counsel to the Company, shall ha▇▇ ▇▇▇▇ish▇▇ ▇o the Initial Purchasers its written opinion addressed to the Initial Purchasers as to the validity and perfection of the security interest created pursuant to such agreement and such other matters as the parties may mutually agree, such opinion to be in form and substance reasonably satisfactory to the Initial Purchasers.
(o) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by federal or state authorities; (iii) the United States shall have become directly engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), in each case, as to make it, in the judgment of the Initial Purchasers, impracticable or inadvisable to proceed with offering or delivery of the Series A Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum.
(p) At the Closing Date, the Company's existing credit facilities dated August 10, 1998 (the "Existing Credit Facilities") shall be repaid in full, or, if not, then either (1) the Company shall have secured an amendment, consent or waiver under the Existing Credit Facilities such that the issuance of the Series A Notes and the transactions contemplated hereby will not cause a breach of, or default under, the Existing Credit Facilities or (2) the Initial Purchasers shall have received an opinion of Skadden, Arps, Slate, Meagher & Flom (Illinois) stating that the Registration Rights Agreement executed by issuance of the Company Series A ▇▇▇▇▇ and ▇▇▇ transactions contemplated hereby will not cause a breach of, or default under, the Existing Credit Facilities, such agreement shall opinion to be in full force form and effect at all times from and after substance reasonably satisfactory to the Closing Date.
(h) On or before Initial Purchasers. At the Closing Date, the Initial Purchasers and counsel for Company shall provide to the Initial Purchasers shall have received such further certificatesevidence reasonably satisfactory to them of the repayment of or amendment, documents consent or other information as they may have reasonably requested from waiver under the CompanyExisting Credit Facilities. All opinions, certificatesletters, letters evidence and documents delivered pursuant to certificates mentioned above or elsewhere in this Agreement will comply shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Ball Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, hereunder shall be subject, in the Initial Purchasers’ sole their discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company contained herein as of the date hereof are, at and as of each Closing DateTime of Delivery, as if made on true and as of each Closing Datecorrect, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed, and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, shall have furnished to you such opinion or opinions, dated the Closing Datesuch Time of Delivery, with respect to certain legal such matters relating to this Agreement as you may reasonably request, and such other related matters counsel shall have received such papers and information as the Initial Purchasers they may reasonably requirerequest to enable them to pass upon such matters;
▇. In rendering such opinion, ▇▇▇▇▇▇ Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to you its written opinion, dated such Time of Delivery, in form and substance agreed to by the parties prior to the date hereof;
c. On the date of the Offering Memorandum concurrently with the execution of this Agreement and also at each Time of Delivery, ▇▇▇▇▇ & Young LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request furnished to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP you a letter or letters datedletters, respectively, dated the date hereof and the Closing Daterespective dates of delivery thereof, in form and substance satisfactory to counsel for the Initial Purchasers.you;
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither i. Neither the Company nor any of its subsidiaries has shall have sustained since the date of the latest audited financial statements included in the Pricing Memorandum any material loss or interference with their respective businesses or properties its business from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, order or decree, otherwise than as set forth or contemplated in the Pricing Memorandum, and (ii) since the respective dates as of which information is given in the Pricing Memorandum there has shall not have been any materially adverse change (including, without limitation, a change in management the capital stock (other than the issuance or control)grant of securities pursuant to employee equity incentive plans existing as of the date of this Agreement or pursuant to outstanding options, warrants or rights) or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective materially adverse change, in or affecting the condition (financial or otherwise)general affairs, management, earnings, properties, business affairs or business prospectsfinancial position, stockholders’ equity, net worth equity or results of operations of the Company or any of and its subsidiaries, taken otherwise than as a wholeset forth or contemplated in the Pricing Memorandum, except the effect of which, in each any such case as described in clause (i) or contemplated by (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the Final Memorandum (exclusive of any amendment offering or supplement thereto).
(e) Subsequent to the execution and delivery of the Securities on the terms and in the manner contemplated in this Agreement and prior to in each of the Closing Date, there Pricing Disclosure Package and the Offering Memorandum;
e. On or after the Applicable Time (i) no downgrading shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s debt securities by any “nationally recognized statistical rating organization”, as such that term is defined for purposes of Rule 436(g)(2by the Commission in Section 3(a)(62) under the Exchange Act., and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities;
f. On or after the Applicable Time there shall not have occurred any of the following: (fi) The Indenture a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq Global Select Market; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Offering Memorandum;
g. A number of shares of Common Stock equal to the Maximum Number of Underlying Securities shall have been executed duly listed, subject to notice of issuance, on the NYSE;
h. The Company shall have obtained and delivered by all to the parties thereto.Initial Purchasers executed copies of an agreement from each of the Company’s directors and executive officers listed in Schedule IV hereto, substantially to the effect set forth in Exhibit A hereof;
(g) On the Closing Date, the i. The Initial Purchasers shall have received an executed original copy of the Registration Rights Agreement executed Indenture;
j. The Securities shall be eligible for clearance and settlement through the facilities of DTC;
k. The Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsection (e) of this Section and as to such agreement shall be in full force and effect at all times from and after the Closing Date.other matters as you may reasonably request; and
(h) On or before the Closing Date, the Initial Purchasers and counsel for the l. The Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from (i) a certificate of the Chief Financial Officer of the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are in a form that is reasonably satisfactory in all material respects to the Initial Purchasers Purchasers, dated the date hereof, with respect to certain financial information contained in the Pricing Disclosure Package and counsel for (ii) a “bring-down” certificate of the Chief Financial Officer of the Company, in a form that is reasonably satisfactory to the Initial Purchasers. The Company shall furnish , dated the Closing Date, with respect to certain financial information contained in the Offering Memorandum and to the Initial Purchasers effect that such conformed copies of officer reaffirms the statements made in the initial certificate furnished pursuant to subclause (i) with respect to such opinions, certificates, letters, and documents financial information contained in such quantities as the Initial Purchasers shall reasonably requestPricing Disclosure Package.
Appears in 1 contract
Sources: Purchase Agreement (Workiva Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Purchased Notes shall, on the Closing Date will be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements obligations hereunder and to the following additional conditionsconditions precedent:
(a) On the Closing DateThe Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Initial Purchasers Transaction Documents shall have received been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Business Loans and related Loan Files shall have been delivered to the Indenture Trustee pursuant to the Transfer and Servicing Agreement.
(b) The Initial Purchaser shall receive a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Companycertificate, dated the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Executive or Senior Vice President of the Company to the effect that such officer has carefully examined this Agreement, the Memorandum and the Transaction Documents and that:
, to the best of such officer’s knowledge (i) since the date information is given in the Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Business Loans except as contemplated by the Memorandum or as described in such counsel certificates, (ii) the representations and warranties of the Company set forth herein are true and correct as of the Closing Date, (iii) the Company has no reason complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (other than the financial statements Memorandum, and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandumany amendment thereof or supplement thereto, as of its date and as of the Closing Date, or the date of such opinion, included or includes any Additional Offering Document contains an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iic) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) The Class A Notes shall have been duly organized rated no less than “Aaa” by ▇▇▇▇▇’▇ Investors Services, Inc. (“Moody’s”), “AAA” by Standard & Poor’s Ratings Services, a division of The McGraw–Hill Companies, Inc. (“S&P”), and are validly existing as corporations in good standing under “AAA” by Fitch, Inc. (“Fitch”) and the laws of their Class B Notes shall have been rated no less than “A2” by Moody’s, “A” by S&P, and “A+” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the failure to be so qualified would amount to a material liability or disability rating of the Offered Notes have been placed under review.
(d) On the date of the Memorandum, Ernst & Young shall have furnished to the Company Initial Purchaser an “agreed upon procedures” letter, dated the date of delivery thereof, in form and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, substance satisfactory to the best knowledge of such counselInitial Purchaser, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents certain financial and proceedings statistical information contained in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIAMemorandum.
(vie) the Notes Initial Purchaser shall have been duly authorized by all necessary corporate action of the Company andreceived an opinion, on and as of dated the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇▇ LLP▇. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered ▇, in—house counsel to the Initial Purchasers and counsel for Indenture Trustee, substantially in the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.form attached hereto as Exhibit A.
(bf) The Initial Purchasers Purchaser shall have received a legal an opinion from ▇▇▇▇▇▇ of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial PurchasersCompany, dated the Closing Date, (i) with respect to certain legal corporate matters relating substantially in the form attached hereto as Exhibit B and (ii) with respect to this Agreement there being no consents required to transfer the business Loans substantially in the form attached hereto as Exhibit C.
(g) The Initial Purchaser shall have received opinions of Winston & ▇▇▇▇▇▇, counsel to the Company, the Trust Depositor and such other related matters the Trust, (i) with respect to certain corporate, federal tax, securities law and investment company matters, substantially in the forms attached hereto as Exhibit D and (ii) with respect to certain “true sale,” “non–consolidation” issues and “perfection issues” substantially in the forms attached hereto as Exhibit E.
(h) The Initial Purchasers may reasonably require. In rendering such opinionPurchaser shall have received opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received Finger, counsel to the Owner Trustee and may rely upon such certificates the Trust, (i) substantially in the forms attached hereto as Exhibit F, (ii) with respect to certain “trust issues” substantially in the form attached hereto as Exhibit G and other documents and information (iii) with respect to certain “perfection issues” substantially in the forms attached hereto as it may reasonably request to pass upon such matters.Exhibit H.
(ci) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP the Indenture Trustee a letter certificate signed by one or letters datedmore duly authorized officers of the Indenture Trustee, respectively, the date hereof and dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchaserscustomary form.
(dj) The Initial Purchaser shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form.
(k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer Purchaser and its Chief Financial Officer counsel such further information, certificates and documents as the Initial Purchaser and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers Purchaser and its counsel.
(l) All documents incident hereto and to the effect that:
(i) Transaction Documents shall be reasonably satisfactory in form and substance to the representations Initial Purchaser and warranties its counsel, and the Initial Purchaser and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the Company conditions specified in this Agreement are true and correct as if made on Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the Closing Date; opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Company has performed Initial Purchaser, this Agreement and all covenants and agreements and satisfied all conditions on its part to of the Initial Purchaser’s obligations hereunder may be performed or satisfied canceled by the Initial Purchaser at or prior to delivery of and payment for the Closing Date; and
(ii) subsequent Purchased Notes. Notice of such cancellation shall be given to the respective dates as of which information is given Company in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancewriting, or from any labor dispute by telephone or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change telecopy confirmed in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)writing.
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (American Capital Strategies LTD)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and are subject to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Notes in any jurisdiction designated by the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLPbeen issued and no proceedings for that purpose shall have been commenced or shall be pending or, counsel for to the knowledge of the Company, dated the Closing Date, shall be contemplated.
(b) Subsequent to the effect that:
effective date of this Agreement, there shall not have occurred (i) such counsel has no reason to believe that any change, or any development involving a prospective change, in or affecting the condition (other than financial or other), business, properties, net worth, or results of operations of the financial statements and other financial information contained therein, as to which such counsel need express no opinion) Company or the Final Subsidiaries not contemplated by the Offering Memorandum, as which in the opinion of its date the Initial Purchasers, would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving the date Company or any officer or director of such opinion, included or includes the Company which makes any untrue statement of a material fact made in the Offering Memorandum untrue or omitted which, in the opinion of the Company and its counsel or omits the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state any a material fact required by law to be stated therein or necessary in order to make the statements thereintherein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy opinion of the Initial Purchasers’ representations in Section 8 and those of , materially adversely affect the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel market for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersNotes.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and on the Closing DateDate an opinion of Kilp▇▇▇▇▇▇ & ▇ody, in form ▇▇unsel for the Company, dated the Closing Date and substance satisfactory addressed to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) The Company is a corporation duly incorporated and validly existing in good standing under the representations and warranties laws of the Company in this Agreement are true State of Georgia with full corporate power and correct authority to own, lease and operate its properties and to conduct its business as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given described in the Final Offering Memorandum (exclusive of and any amendment or supplement thereto), neither ;
(ii) Each of the Company nor any Subsidiary Guarantors and each other Significant Subsidiary (as defined in Section 1.02(v) of Regulation S-X promulgated under the Act) incorporated in the United States is a corporation duly organized and validly existing and in good standing under the laws of the jurisdiction of its subsidiaries has sustained any material loss or interference organization, with their respective businesses or properties from firefull corporate power and authority to own, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceedinglease, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, operate its properties and to conduct its business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Offering Memorandum (exclusive of and any amendment or supplement thereto).
(e) Subsequent to ; and all the execution outstanding shares of capital stock of each of the Subsidiary Guarantors and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice each other Significant Subsidiary have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changeduly authorized and validly issued, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed are fully paid and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, lettersnonassessable, and documents in such quantities as the Initial Purchasers shall reasonably request.(except for directors' qualifying shares or similar interests) to the
Appears in 1 contract
Sources: Purchase Agreement (Interface Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes Securities shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the CompanyIssuers, dated in form and substance reasonably satisfactory to counsel for the Closing DateInitial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the The Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) Subsidiaries have been duly organized incorporated and are validly existing as corporations and in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of have all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate own their respective properties and assets and to conduct their respective businesses business as described in the Final Memorandum; PROVIDED that no opinion as to good standing need be expressed with respect to VAD International, Inc. subsequent to June 25, 1997.
(ii) Except as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Subsidiaries are owned, directly or indirectly, by the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any all perfected security interests orand, to the best knowledge of such counsel, any free and clear of all other security interests, liens, encumbrances, equities and claims or claims, except for pledges restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of subsidiary stock under debt instruments;certain jurisdictions) or voting.
(iii) the statements Except as set forth under the heading “Description of Notes” in the Final Memorandum, insofar as to the best of such statements purport to summarize certain provisions counsel's knowledge, no holder of securities of the Notes and Company or any Subsidiary is entitled to have such securities registered under a registration statement filed by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus Issuers pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;Registration Rights Agreement.
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action Each of the Issuers has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Company has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Notes, the Exchange Notes and the Agreement Private Exchange Notes; the Guarantors have all requisite corporate power and authority to execute, deliver and perform each of their obligations under the Guarantees; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly and validly authorized, executed and delivered by the Company;
(v) the execution and delivery each of the Indenture have been duly authorized by the Company and, when duly executed Issuers and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), ) constitutes the Indenture will be a legal, legally valid and binding agreement of each of the CompanyIssuers, enforceable against the Company Issuers in accordance with its terms terms, except that the enforcement thereof may be limited or qualified by (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencymoratorium, moratorium fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors’ the rights generally from time to time and remedies of creditors and (ii) general principles of equity, whether enforcement is considered in effect). The Indenture meets a proceeding in equity or at law, and the requirements for qualification under discretion of the TIAcourt before which any proceeding therefor may be brought.
(viv) The Notes are in the form contemplated by the Indenture. The Notes have each been duly authorized by all necessary corporate action of the Company andand validly authorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the TrusteeTrustee in accordance with the Indenture), will be constitute the legal, legally valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and will be entitled to the benefits of the Indenture; no holder , and will be enforceable against the Company in accordance with their terms, except that the enforcement thereof may be limited or qualified by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of securities creditors and (ii) general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the Company has court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act proceeding therefor may be brought.
(vi) The Guarantees are in the offering of the Notes contemplated by this Agreement or in the Exchange Offer form contemplated by the Registration Rights Agreement;Indenture. The Guarantees have each been duly and validly authorized, executed and delivered by the Subsidiaries and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Guarantees by the Trustee in accordance with the Indenture), will constitute the legally valid and binding obligations of the Subsidiaries, and will be enforceable against the Subsidiaries in accordance with their terms, except that the enforcement thereof may be limited or qualified by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors and (ii) general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought.
(vii) The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, the Guarantees to be endorsed on the Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the CompanyGuarantors and, and when the Exchange Notes and Guarantees thereof and the Private Exchange Notes are have been duly executed and delivered by the Company Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, legally valid and binding obligations of the CompanyIssuers, be entitled to the benefits of the Indenture, and be enforceable against the Issuers in accordance with their terms terms, except that the enforcement thereof may be limited or qualified by (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencymoratorium, moratorium fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors’ the rights generally from time to time and remedies of creditors and (ii) general principles of equity, whether enforcement is considered in effect)a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought.
(viii) Each of the Company Issuers has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company andand validly authorized, when duly executed and delivered by each of the Company Issuers and (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Initial
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, shall be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Choa▇▇, ▇▇ll & Stew▇▇▇, ▇▇▇▇▇ Chance US LLP, counsel unsel for the Company, in form and substance reasonably satisfactory to counsel to the Initial Purchasers, dated the Closing Date, substantially to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the The Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have Significant Subsidiaries has been duly organized and are organized, is validly existing as corporations and is in good standing as a corporation, limited partnership or limited liability company, as the case may be, under the laws of their respective jurisdictions its jurisdiction of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of or formation, with all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability requisite corporate or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full partnership power and authority to own, lease and operate their respective its properties and assets conduct its business as, to such counsel's knowledge, now conducted, and conduct their respective businesses as described in the Final Memorandum, ; each of the Company and the Company has corporate power Significant Subsidiaries is duly qualified to enter into this Agreementdo business as a foreign corporation, limited partnership or limited liability company in good standing in those jurisdictions set forth on an annex to such opinion.
(ii) To such counsel's knowledge, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; Company, directly or indirectly, owns all of the issued and outstanding capital stock or other equity interests of the Significant Subsidiaries. The Company's authorized capital stock is as set forth in the Offering Memorandum. To such counsel's knowledge, all of the outstanding shares of capital stock of each the corporate Significant Subsidiaries as of the Company’s significant subsidiariesClosing Date are duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, there are no (i) options, warrants or other rights to purchase from the Significant Subsidiaries, (ii) agreements or other obligations of the Significant Subsidiaries to issue or (iii) other rights to convert any obligation into, or exchange any securities for, shares of capital stock of, or other security interestsequity securities in, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;the Significant Subsidiaries outstanding.
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; Notes. The Global Note (as such term is defined in the Registration Rights Agreement Indenture) is in the form contemplated by the Indenture. The Global Note has been duly authorized and validly authorized, executed and delivered by the Company and, when duly executed and delivered authenticated by the Company (assuming due authorization, execution Notes Trustee in accordance with the provisions of the Indenture and delivery thereof when delivered to and paid for by the Initial Purchasers)Purchasers in accordance with the terms of this Agreement, will be a legal, constitute valid and legally binding agreement obligations of the Company, will be entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with its terms (subjectterms, except as to enforcement of remediesthe enforceability thereof may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law).
(iv) The Company and each applicable Significant Subsidiary has all requisite corporate or partnership power and authority to execute, deliver and perform their obligations under the Indenture. The Indenture meets the requirements for qualification under the TIA. The Indenture has been duly and validly authorized, executed and delivered by the Company and each applicable Significant Subsidiary and constitutes a valid and legally binding agreement of the Company and each applicable Significant Subsidiary, enforceable against the Company and each applicable Significant Subsidiary in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors’ ' rights generally from time and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law).
(v) The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes have been duly executed and delivered by the Company and authenticated by the Notes Trustee in accordance with the terms of the Registration Rights Agreement and the Indenture, will constitute the valid and legally binding obligations of the Company, entitled to time the benefits of the Indenture, and enforceable against the Company in effect accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law);
(vi) The Company and each applicable Significant Subsidiary has all requisite corporate or partnership power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement. The Registration Rights Agreement has been duly and validly authorized, executed and delivered by the Company and each applicable Significant Subsidiary and constitutes a valid and legally binding agreement of the Company and each applicable Significant Subsidiary enforceable against the Company and each applicable Significant Subsidiary in accordance with its terms, except (A) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and (B) that any rights to indemnity or contribution thereunder may be limited by federal and or state securities laws and or public policy considerations.
(vii) Each applicable Significant Subsidiary has all requisite corporate or partnership power and authority to execute, deliver and perform its obligations under its respective Note Guarantee. Each Note Guarantee has been duly and validly authorized, executed and delivered by the applicable Significant Subsidiary and constitutes a valid and legally binding agreement of such Significant Subsidiary enforceable against such applicable Significant Subsidiary in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law).
(viii) Each applicable Significant Subsidiary providing security for the Notes has all requisite corporate or partnership and authority to execute, deliver and perform its obligations under its respective Mortgages. Each Mortgage has been duly and validly authorized, executed and delivered by the applicable Significant Subsidiary.
(ix) The Company and each applicable Significant Subsidiary has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the execution transactions contemplated hereby. This Agreement has been duly and delivery validly authorized, executed and delivered by the Company ofand each applicable Significant Subsidiary.
(x) No consent, and approval, authorization or order of any court or governmental agency or body or, to the knowledge of such counsel, third party is required for the execution, delivery or performance by the Company or any applicable Significant Subsidiary of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuanceNote Guarantees, offering and sale of the Notes to Mortgages, the Initial Purchasers Registration Rights Agreement or the Indenture or the consummation by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation or any of the other applicable Significant Subsidiaries of the transactions herein contemplated do not (x) require hereby or thereby that are to be completed prior to or on the consent, approval, authorization, registration or qualification of or with any governmental authoritydate hereof, except such as have been obtained or made (disclosed in the Final Memorandum and specified in such opinion) or such as may be required by the under state securities or "Blue Sky Sky" laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer purchase and sale resale of the Notes by the Initial Purchasers and except those that such as may be required by the Act or the TIA necessary in connection with the exchange offer Mortgages and any security interests provided to the Notes Trustee for the benefit of the holders of the Notes. Such counsel may note that the Company will be required to make certain securities law filings following the Closing Date in connection with the transactions contemplated hereby.
(xi) The execution, delivery and performance by the Company and the applicable Significant Subsidiaries of this Agreement, the Notes, the Exchange Notes, the Private Exchange Notes, the Mortgages, the Note Guarantees, the Indenture and the Registration Rights AgreementAgreement and the consummation by the Company and the applicable Significant Subsidiaries of the transactions contemplated hereby and thereby, or (y) and the fulfillment of the terms thereof, will not conflict with or constitute or result in a breach of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) to the knowledge of such counsel and assuming that the net proceeds of the Notes will be used as set forth in the Final Memorandum and that, except as indicated in the Final Memorandum, all credit facilities and loan agreements and related documents of the Company and the Significant Subsidiaries will be paid in full (including any applicable prepayment penalties), and terminated as of the Closing Date, the terms and or provisions of, or constitute a default under, of any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, Contract to which the Company or any of its significant subsidiaries the applicable Significant Subsidiary is a party or by to which the Company or any of its significant subsidiaries or any of their respective properties are it is bound, except such conflicts, breaches, defaults or violations, that would not, individually or in the charter documents aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or by-laws (or similar organizational document) of the Company or any of its significant subsidiariesthe Significant Subsidiaries, or (iii) to the knowledge of such counsel, any statute or any statute, judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;any of the Significant Subsidiaries or any of their respective properties or assets except such conflicts, breaches, defaults or violations that would not, individually or in the aggregate, have a Material Adverse Effect.
(xxii) Neither the Company nor any of the applicable Significant Subsidiaries is not an “investment company” and, or immediately after giving effect to the Offering sale of the Notes to be sold hereunder and the application of the proceeds therefrom, will not be an “investment company”, from such sale (as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum under the caption "Use of Proceeds") will be an "investment company" or any statutesa company controlled by an investment company within the meaning of the Investment Company Act of 1940, regulationsas amended, contracts or other documents that would be required to be described and the rules and regulations thereunder.
(xiii) The Notes, the Exchange Notes, the Note Guarantees, the Mortgages, the Registration Rights Agreement and the Indenture conform in a prospectus pursuant all material respects to the Act that are not described or incorporated descriptions thereof in the Final Memorandum.
(xiixiv) commencing with To the Company’s taxable year ended December 31knowledge of such counsel, 1998, no holder of securities of the Company was organized and has operated in conformity with nor any of the Subsidiaries will be entitled to have such securities registered under the registration statements required to be filed by the Company pursuant to the Registration Rights Agreement other than as expressly permitted thereby.
(xv) The Notes satisfy the eligibility requirements for qualification as a real estate investment trust (“REIT”of Rule 144A(d)(3) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualifyAct.
(xiiixvi) No registration under the Act of the Notes and no qualification of the Indenture under the TIA is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of the manner contemplated by this AgreementAgreement and the Final Memorandum, and prior it being understood that no opinion is expressed as to the commencement any subsequent resale of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, Notes in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”) or (B) that the offer or sale of "), and acquire the Notes is made in an offshore a transaction as defined in Regulation Spursuant to Rule 144A, and (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those warranties of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements in each case as set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely(A) state that such counsel's opinion is limited to the federal law of the United States and the laws of the Commonwealth of Massachusetts and the General Corporation Law of the State of Delaware, (B) rely as to matters involving the application of laws of the State of New York, upon the opinion of Jone▇, ▇▇y, Reav▇▇ & ▇ogu▇, ▇▇unsel for the Initial Purchasers and (C) as to matters of fact, to the extent such counsel deems they deem proper, on certificates of responsible officers of the Company and public officials andand the representations and warranties contained in this Agreement. It is understood that such counsel need not express any opinion as to the content of or effect on the Company or any Subsidiary, or the application to this Agreement or any other agreement contemplated hereby or the transactions contemplated hereby or thereby of any law, statute, rule or regulation relating to the acquisition, development, sale, financing, registration, licensing or similar matter relating to real estate or timeshare interests. Such counsel has not acted, and does not act, as counsel to matters involving the application Company or any of laws its Subsidiaries in connection with any of any jurisdiction such matters. In addition to the foregoing, such counsel shall state that is has participated in conferences with executive officers and other than the State of New York or the United States or the General Corporation Law representatives of the State Company, representatives of Delawarethe Company's independent public accountants, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by Purchasers, at which conferences the Initial Purchasers. References to contents of the Final Memorandum and related matters were discussed, and although such counsel has not independently verified and has not passed upon or assumed any responsibility for the accuracy, completeness or fairness of the statements contained in this subsection the Final Memorandum, and on the basis of the foregoing no facts have come to such counsel's attention to lead it to believe that the Final Memorandum and any further amendments or supplements thereto as of their respective dates and on the date of such opinion letter contained or contains an untrue statement of a material fact or omitted or omits to state a material fact, necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (a) shall include it being understood that such counsel need not express any amendment or supplement thereto prepared view with respect to the financial statements (including the notes thereto), financial statement schedules and the other financial data included in accordance with the provisions Final Memorandum). The opinion of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from Choa▇▇, ▇▇ll & ▇tew▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to cribed in this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP Section shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished rendered to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties request of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)shall so state therein.
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(gb) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters in form and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are substance reasonably satisfactory in all material respects to the Initial Purchasers Purchasers, dated as of the Closing Date and counsel for addressed to the Initial Purchasers:
(i) of counsel licensed in each state in which any of the Pledged Properties are located. The Company Such opinions shall furnish cover such matters as are reasonably requested by the Initial Purchasers, including the following: (A) each Mortgage, when filed in the appropriate recording office, will constitute a valid first lien on the Pledged Property identified therein, subject only to the Initial Purchasers such conformed copies lien of such opinions, certificates, letterstaxes and assessments not yet due and payable, and documents in such quantities covenants, conditions, and restrictions of record (other than liens for the payment of money) as existed at the Initial Purchasers shall reasonably request.time of acquisition thereof by the Guar▇▇▇▇▇ ▇▇ Subsidiary executing the Mortgage and such other covenants, conditions, and restrictions of record thereafter executed by, or consented to by, the Subsidiary Guarantor executing the Mortgage which do not adversely affect the marketability of title to, or th
Appears in 1 contract
Sources: Purchase Agreement (Bluegreen Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation respective obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on the Closing Date (as if made again on and as of such date), of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its covenants and agreements hereunder their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the Initial Purchasers The Offering Memorandum shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLPbeen printed and copies made available to you not later than 6:00 p.m., counsel for New York City time, on the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or Business Day following the date of this Agreement, or at such opinion, included later date and time as you may approve in writing.
(b) No Initial Purchaser shall have discovered and disclosed to the Company on or includes prior to such Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Lath▇▇ & ▇atk▇▇▇, ▇▇unsel for the Initial Purchasers, is material fact or omitted or omits to state any a fact which, in the opinion of such counsel, is material fact and is required to be stated therein or is necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(iic) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company and the Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Port▇▇ & ▇edg▇▇, ▇.L.P. shall have furnished to the Initial Purchasers its written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated such Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) The Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) Guarantors have been duly organized incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and incorporation, are duly qualified to transact do business as foreign corporations and are in good standing under as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the laws conduct of all other jurisdictions their respective businesses requires such qualification, except where such counsel has been advised that the failure to so register or qualify or to be so qualified in good standing would amount to not have a material liability or disability to the Company Material Adverse Effect, and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full all power and authority necessary to own, lease and operate own or hold their respective properties and assets and conduct their respective the businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, which they are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsengaged;
(iiiii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the The Purchase Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company andauthorized, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement each of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on Guarantors and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 ) constitutes a valid and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers legally binding agreement of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law each of the State Guarantors, enforceable against each of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared them in accordance with the provisions of this Agreement at the Closing Date.its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and by general equitable principles;
(biii) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPWarrant Agreement has been duly authorized, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.delivered
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the each Initial Purchasers Purchaser to purchase and pay for the Notes shall, Securities to be subjectpurchased by it on the Closing Date hereunder are subject to the fulfillment, in the such Initial Purchasers’ Purchaser's sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for those purposes shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. No order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, threatened.
(b) On the Closing Date, the Company shall have delivered to the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLPtrue, counsel for correct and complete copy of the credit agreement (the "Credit Agreement") dated as of July 7, 1998 by and among the Company, dated the Guarantors, the lenders party thereto in their capacities as lenders thereunder and First Union National Bank, as agent; on and as of the Closing Date, Date (after giving effect to the effect that:consummation of the transactions contemplated by this Agreement), there shall not exist any condition which would constitute a Default or an Event of Default (as defined in the Credit Agreement).
(c) Subsequent to the date hereof, (i) such counsel has no reason to believe that except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (other than financial or other), business, prospects, properties, assets, net worth or results of operations of the financial statements Company and other financial information contained thereinthe Subsidiaries, taken as to which such counsel need express no opiniona whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) the Final Memorandum, as of its date or the date of such opinion, included or includes Offering Memorandum shall not contain any untrue statement of a material fact or omitted or omits omit to state any 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.
(ii) , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where correct any such counsel has been advised that the failure to be so qualified would amount to a material liability misstatement or disability to the Company and its subsidiariesomission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers’ representations in Section 8 and those , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateSecurities.
(bd) The Initial Purchasers shall have received a legal on the Closing Date an opinion from each of Edwa▇▇▇ & ▇nge▇▇ ▇▇▇ Wellesley Law Associates, counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, substantially in the form of, respectively, EXHIBIT B-1 and EXHIBIT B-2 hereto.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.,
(cf) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or "cold comfort" letters datedaddressed to the Initial Purchasers, respectively, and dated the date hereof and the Closing Date, from Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, substantially in form and substance satisfactory to counsel for the forms heretofore approved by the Initial Purchasers.
(di) There shall not have been any change in the capital stock of the Company or any Subsidiary nor any material increase in the short-term or long-term debt of the Company or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole; (iii) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; and (iv) the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of each of the Company and the Guarantors (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(g) and in Section 7(h) hereof.
(h) The Company and the Guarantors shall not have failed at or prior to the Closing Date to have performed or complied with any of their respective agreements herein contained and required to be performed or complied with by them hereunder at or prior to the Closing Date.
(i) There shall not have been any announcement by any "nationally recognized statistical rating
(j) The Securities shall have been approved for trading on PORTAL.
(k) The Company shall have taken all necessary acts to (i) repay all of the indebtedness for money borrowed of the Company and the Subsidiaries indicated as being repaid in the Offering Memorandum under the caption "Selected Pro Forma Financial Data" immediately prior to the issuance of the Securities and (ii) terminate the related credit agreements.
(l) The Company shall have received a solvency opinion from Houlihan, Lokey, Howa▇▇ & ▇ukin Financial Advisors, Inc., which solvency opinion shall be in form and substance reasonably satisfactory to the Initial Purchasers.
(m) The Company and the Guarantors shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer such further certificates and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct customary closing documents as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Companyrequested. All such opinions, certificates, letters and other documents delivered pursuant to this Agreement will comply be in compliance with the provisions hereof only if they are reasonably satisfactory in all material respects form and substance to the Initial Purchasers Purchasers. Any certificate or document signed by any officer of the Company or a Guarantor and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers. The , shall be deemed a representation and warranty by the Company shall furnish or such Guarantor to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as to the Initial Purchasers shall reasonably requeststatements made therein.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Paul, Hastings, Janofsky & Walker LLP, counsel for the Company, in form and substance ▇▇▇▇▇▇▇▇ Chance US LLP, ▇ly ▇▇▇▇▇▇actory to counsel for the Company, dated the Closing DateInitial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained thereinThe Company is duly incorporated, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations and in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation incorporation, and are duly qualified has all requisite corporate power and authority to transact own its properties and to conduct its business as foreign corporations described in the Final Memorandum. Each of the Subsidiaries listed on Schedule 3 hereto (such subsidiaries, the "Significant Subsidiaries") is validly existing and are in good standing under the laws of its respective jurisdiction of incorporation, formation or organization, as the case may be, and has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite power and authority (corporate and other) to own, lease and operate their respective own its properties and assets conduct its business as now conducted and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;.
(iiiii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action Each of the Company and the Agreement Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction listed on a schedule to such opinion.
(iii) The Company and each Significant Subsidiary, as applicable, has all requisite corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the Private Exchange Notes; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly validly authorized by the Company and each Significant Subsidiary and, when duly executed and delivered by each of the Company Issuers (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the Indenture will be a legal, valid and binding agreement of each of the Company and each Significant Subsidiary, enforceable against the Company and each of the Significant Subsidiaries in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance and transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance.
(iv) The Notes are substantially in the form attached to the Indenture. The Notes have each been duly and validly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with its terms their terms, except that the enforcement thereof may be subject to (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance and transfer, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to time in effect). The Indenture meets limit the requirements for qualification under the TIAavailability of equitable remedies such as specific performance.
(viv) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms terms, except that the enforcement thereof may be subject to (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance and transfer, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to time in effect)limit the availability of equitable remedies such as specific performance.
(viiivi) The Guarantees are substantially in the form attached to the Indenture. The Guarantees and the guarantees of the Exchange Notes and the Private Exchange Notes have been duly and validly authorized by each Significant Subsidiary and, when executed by each of the Subsidiary Guarantors and when the Notes are duly executed and delivered against payment therefor and are authenticated by the Trustee in accordance with the provisions of the Indenture, such Guarantees and such guarantees of the Exchange Notes will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of each Significant Subsidiary, entitled to the benefits of the Indenture and enforceable against the Subsidiary Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance and transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance.
(vii) Each of the Company and the Significant Subsidiaries has all requisite corporate corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the Company and, when duly executed and delivered by each of the Company Issuers (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, constitute the valid and legally binding agreement of each of the CompanyCompany and each Significant Subsidiary, enforceable against the Company and each Significant Subsidiary in accordance with its terms terms, except that (subjectA) the enforcement thereof may be subject to (i) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance and transfer, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effect and except that (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations)considerations including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance.
(viii) Each of the Company and the Significant Subsidiaries has all requisite corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company and each of the Significant Subsidiaries of the transactions contemplated hereby have been duly and validly authorized by the Company and each of the Significant Subsidiaries. This Agreement has been duly executed and delivered by the Company and each of the Significant Subsidiaries.
(ix) The Indenture, the execution and delivery by Notes, the Company of, Guarantees and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum.
(x) The execution, delivery and performance by the Company of its obligations under, this Agreement, the Indenture, the Registration Rights AgreementAgreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering issuance and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do Purchasers) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms and or provisions ofof any Material Contract, except for any such conflict, breach, violation, default or constitute event that would not, individually or in the aggregate, have a default underMaterial Adverse Effect, any indenture, mortgage, deed (ii) the certificate of trust, lease incorporation or other material agreement bylaws (or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws similar organizational document) of the Company or any of its significant subsidiariesthe Significant Subsidiaries, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any statute U.S. federal, New York or any California State or Delaware General Corporation Law statute, judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and to be applicable to the Company or its significant subsidiaries;any of the Significant Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect. For purposes hereof, a "Material Contract" means the agreements and instruments listed on a schedule to such opinion.
(xxi) No consent, approval, authorization or order of any U.S. federal or New York or California State governmental authority is required for the issuance and sale by the Company is not an “investment company” and, after giving effect to the Offering of the Notes to the Initial Purchasers or the consummation by the Company of the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained.
(xii) None of the Company or any Significant Subsidiary is, and immediately following the consummation of the transactions contemplated by this Agreement and the application of the net proceeds therefrom, will not be an “investment company”, as such term is defined in from the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property sale of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus Notes pursuant to the Act that are not this Agreement (as described in the Final Memorandum or any statutesunder the caption "Use of Proceeds") will be, regulations, contracts or other documents that would be an "investment company" required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) registered under the Code, and the Company’s present and proposed method Investment Company Act of operation1940, as represented by the Company, will permit the Company to continue to so qualifyamended.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinionAt the time the foregoing opinion is delivered, such counsel may relyPaul, as to matters of factHastings, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Janofsky & Walker LLP shall additionally state that it has participate▇ ▇▇ ▇▇▇fer▇▇▇▇▇ LLP. An opinion with officers and other representatives of ▇▇▇▇▇▇▇ LLP shall be delivered to the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchasers and counsel for the Initial Purchasers covering Purchasers, at which conferences the contents of the Final Memorandum and related matters reasonably requested by were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the Initial Purchasersaccuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(ix)), on the basis of the foregoing (relying as to materiality to a certain extent upon the opinions of officers and other representatives of the Company and its Subsidiaries) no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, 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 contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need make no statement with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Company's books and records included in the Final Memorandum). The opinion of Paul, Hastings, Janofsky & Walker LLP described in this Section shall be rendered to t▇▇ ▇▇▇▇▇al ▇▇▇▇▇▇sers at the request of the Company and shall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon & Reindel, counsel for the Initial Purchasers, with resp▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ & ▇▇▇n l▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters ▇▇tters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Cahill Gordon & Reindel shall have received and may rely upon such cer▇▇▇▇▇▇▇▇▇ ▇▇▇ ot▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents uments and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP the Independent Accountants a comfort letter or letters dated, respectively, dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company Issuers contained in this Agreement are shall be true and correct as if made or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on and as the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date; and the Company has Issuers shall have performed or complied with all covenants and agreements and satisfied all conditions on its their part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.described
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchasers' obligations to purchase and pay for the Notes shall, shall be subject, in the Initial Purchasers’ sole discretion, subject to (i) the accuracy of the representations and warranties of the Company and the Guarantor herein contained herein as of the date hereof and as of each the Closing Date, as if made on and as of each Closing Date(ii) the absence in any certificates, opinions, written statements or letters furnished pursuant to this Section 6 to the accuracy Initial Purchasers or to their counsel, of any qualification or limitation not previously approved by the statements of the Company’s officers made pursuant to the provisions hereofInitial Purchasers, to (iii) the performance by the Company and the Guarantor of its covenants their obligations hereunder required to be performed on or prior to the Closing Date, and agreements hereunder and to (iv) the following additional conditions:
(a) Since the date of the latest balance sheet included in the Definitive Memorandum: (i) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company or the Guarantor from that set forth in or contemplated by the Definitive Memorandum, (ii) the Company shall have no liability or obligation, direct or contingent, that is material to the Company and the Guarantor, taken as a whole, other than those reflected in the Definitive Memorandum; and (iii) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the financial condition, business, properties, prospects, oil and gas reserves, net worth or results of operations of the Company and the Guarantor taken as a whole, except, in each case, as expressly described in the Definitive Memorandum.
(b) The representations and warranties made by the Company and the Guarantor herein shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; and the Company and the Guarantor shall have complied in all material respects with all agreements hereunder required to be performed by the Company and the Guarantor.
(c) As to each Initial Purchaser, the purchase of and payment for the Notes to be purchased by such Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation, order or other restriction.
(d) The Definitive Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York time, on the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may agree, and no stop order suspending the qualification or exemption from qualification of the Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(e) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Notes; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company and the Guarantor, threatened against, the Company, the Guarantor or any of their respective subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably by expected to have a Material Adverse Effect, on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries taken as a whole.
(f) On the Closing Date, the Initial Purchasers shall have received a legal the opinion from ▇of Stra▇▇▇▇▇▇▇ Chance US LLP& ▇rice, L.L.P., counsel for to the Company, dated the Closing Date, addressed to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company Purchasers' counsel, substantially as set forth in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties theretoExhibit A hereto.
(g) On the Closing Date, the Initial Purchasers shall have received a certificate, dated the Registration Rights Agreement executed Closing Date, signed by each of the Chairman of the Board and Chief Financial Officer or the President and the Chief Financial Officer of the Company and the Guarantor, and such agreement shall be other certificates of executive officers as the Initial Purchasers may specify confirming the matters set forth in full force paragraphs (a) and effect at all times from and after the Closing Date(b) of this Section 6.
(h) On or before the Closing Date, the Initial Purchasers shall have received from Andr▇▇▇ & ▇urt▇ ▇.▇.P., an opinion, dated the Closing Date, addressed to the Initial Purchasers, with respect to the Company, the Guarantor, the Offering Memorandum, the offer, sale and counsel for resale of the
(i) Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from Ernst & Young LLP, and on the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP, a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers.
(j) Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from NSA, and on the Closing Date, the Initial Purchasers shall have received from NSA, a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers.
(k) On the Closing Date, the Company and the Guarantor shall have executed and delivered the Registration Rights Agreement and the Indenture.
(l) On or prior to the Closing Date, the Revised Credit Facility shall have been executed and delivered by the Company and the banks executing same.
(m) Prior to the Closing Date, the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers reasonably may request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, written statements or letters and documents delivered furnished to the Initial Purchasers or to their counsel pursuant to this Agreement will comply with the provisions hereof only if they are Section 6 shall not be reasonably satisfactory in form and scope in all material respects to the Initial Purchasers and counsel for to their counsel, all of the Initial Purchasers' obligations hereunder may be cancelled by them at, or at any time prior to, the Closing Date. The Company Notice of such cancellation shall furnish be given to the Initial Purchasers such conformed copies of such opinionsCompany and the Guarantor in writing or by telephone, certificatestelecopy, letterstelex or telegraph, and documents confirmed in such quantities as the Initial Purchasers shall reasonably requestwriting.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, Purchaser hereunder will be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each the Closing Date, as if made on in all material respects, of the representations and as warranties of each Closing Datethe Retention Holder and the Issuer herein, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofperformance, to the performance in all material respects, by the Company Retention Holder and the Issuer of its covenants and agreements their respective obligations hereunder and to the following additional conditionsconditions precedent:
(a) On The Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the documents required to be delivered pursuant to the Indenture in respect of the Collateral Obligations shall have been delivered to the Custodian pursuant to and as required by the Transaction Documents.
(b) The Initial Purchaser shall have received (i) a certificate, dated as of the Closing Date, of a Responsible Officer of the Initial Purchasers shall have received Issuer and the Retention Holder, to the effect that such Responsible Officer has carefully examined this Agreement, the Final Offering Circular and the Transaction Documents and that, to the best of such Responsible Officer’s knowledge: (A) since the date information is given in the Preliminary Offering Circular, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Retention Holder or the Issuer whether or not arising in the ordinary course of business, or the ability of the Retention Holder or the Issuer to perform its obligations hereunder or under the Transaction Documents to which it is a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLPparty or in the characteristics of the Collateral Obligations, counsel for except as contemplated by the CompanyFinal Offering Circular, dated (B) each of the Retention Holder and the Issuer has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the other Transaction Documents to which it is a party, at or prior to the Closing Date, (C) the representations and warranties of the Retention Holder and the Issuer herein and in the other Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (D) nothing has come to the effect that:
(i) attention of such counsel has no reason Responsible Officer that would lead such Responsible Officer to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final MemorandumTime of Sale Information, as of its date or the date Time of such opinionSale, included or includes contained any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (ii) a certificate, dated as of the Closing Date, of a Responsible Officer of the Collateral Manager to the effect that such Responsible Officer has carefully examined the Final Offering Circular and that, to the best of such Responsible Officer’s knowledge, nothing has come to the attention of such Responsible Officer that would lead such Responsible Officer to believe that the “Collateral Manager Information” (as defined in the Final Offering Circular), as of the date of the Final Offering Circular and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(i) The Class A Notes shall have been rated no less than “AAA(sf)” by S&P Global Ratings (“S&P”) and (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) Class B Notes shall have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandumrated no less than “AA(sf)” by S&P, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, ratings shall not have been reviewed by such counsel rescinded, and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement no public announcement shall have been duly authorized made by all necessary corporate action S&P that any ratings of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company andplaced under review.
(d) The Initial Purchaser shall have received opinions, on and as of dated the Closing Date, the Notes will have been duly executed and delivered by the Company andof ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, assuming due authentication by the TrusteeLLP, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as counsel to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication the Collateral Administrator, in form and delivery of substance reasonably satisfactory to the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)Initial Purchaser.
(viiie) The Initial Purchaser shall have received legal opinions of Winston & ▇▇▇▇▇▇ LLP, counsel to the Company has all requisite corporate power and authority to executeIssuer, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, Retention Holder and the performance by the Company of its obligations underCollateral Manager, this Agreement(i) with respect to certain limited liability company matters and certain federal tax matters, the Registration Rights Agreement, the Indenture in form and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes substance satisfactory to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation SPurchaser, (ii) the accuracy of the Initial Purchasers’ representations with respect to certain “non–consolidation” issues in Section 8 form and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes substance satisfactory to the Initial Purchasers and the initial resale thereof Purchaser and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as with respect to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory “true sale” issues in form and scope substance satisfactory to counsel for the Initial Purchasers, upon the Purchaser.
(f) The Initial Purchaser shall have received a legal opinion of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP. An opinion , counsel to the Initial Purchaser and the Issuer, with respect to certain matters and certain “perfection issues” in form and substance satisfactory to the Initial Purchaser.
(g) The Initial Purchaser shall have received written letters from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and Winston & ▇▇▇▇▇▇ LLP with respect to the Offering Circular in relation to Rule 10b-5 under the Securities Act, each addressed to the Initial Purchaser in form and substance satisfactory to the Initial Purchaser.
(h) The Initial Purchaser shall have received legal opinions of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ , ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, P.A., Delaware counsel for to the Initial Purchasers, dated Issuer and the Closing Date, Retention Holder with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinionDelaware laws, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Datein each case, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser.
(di) The Company Issuer and the Retention Holder shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer Purchaser and its Chief Financial Officer counsel such further information, certificates and documents as the Initial Purchaser and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement, the other Transaction Documents and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial Purchaser and its counsel.
(j) The Indenture, the Master Participation Agreement, the Master Loan Sale Agreement, the Collateral Management Agreement and all other documents incident hereto and to the other Transaction Documents shall be reasonably satisfactory in form and substance to the Initial Purchaser and its counsel.
(k) The Purchasers shall have purchased or otherwise acquired the Direct Placement Notes directly from the Issuer.
(l) The Issuer shall have executed and delivered one or more letters of representations with respect to the Notes in form reasonably satisfactory to the Initial Purchasers Purchaser.
(m) The Closing Date occurs on or prior to January 22, 2025. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the effect that:
(i) Initial Purchaser, unless in any case waived by the representations Initial Purchaser, this Agreement and warranties all of the Company in this Agreement are true and correct as if made on and as of Initial Purchaser’s obligations hereunder may be canceled by the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied Initial Purchaser at or prior to delivery of and payment for the Closing Date; and
(ii) subsequent Purchased Notes. Notice of such cancellation shall be given to the respective dates as of which information is given Issuer and the Retention Holder in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancewriting, or from any labor dispute by telephone or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change facsimile confirmed in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)writing.
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Stepstone Private Credit Fund LLC)
Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Notes shall, Securities shall be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy of the representations rep- resentations and warranties of made herein on the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements part of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements obligations to be performed hereunder prior to the Closing Date, and to the following additional conditions:
(a) On a. The Company shall have furnished to the Closing DateInitial Purchaser the opinion of , the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for Counsel of ----------------- the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been is a corporation duly organized and are validly existing as corporations and in good standing under the laws of their respective jurisdictions of incorporation Wisconsin and are has due corporate power and authority to own its properties and conduct its business as described in the Offering Memorandum, and is duly qualified to transact business as foreign corporations and conduct in the businesses in ---------- which it is engaged in those States, which are the only States in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure which it is required to be so qualified would amount to a material liability or disability to qualified;
(ii) the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have has full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and execute the Indenture and to carry out all issue the terms Securities thereunder, and provisions hereof the Indenture has been duly authorized, executed and thereof and of the Notes to be carried out delivered by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially and constitutes a valid and legally binding instrument by the Company free and clear of any perfected security interests or, to enforceable against the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsCompany in accordance with its terms;
(iii) the statements set forth under Securities and the heading “Description of Notes” in Indenture have been duly authorized, executed and issued by the Final MemorandumCompany and, insofar as such statements purport to summarize certain provisions assuming due authentication thereof by the Trustee and upon payment for and delivery of the Notes Securities in accordance with the terms of this Agreement, they will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution Company has full power and delivery of authority to execute this Agreement have been duly authorized by all necessary corporate action of the Company and the this Agreement has been duly authorized, executed and delivered by the Company;
(v) an appropriate order or orders of the Commission under the Public Utility Holding Company Act of 1935 authorizing the issuance and sale of the Securities is in effect on the Closing Date and no further approval, authorization, consent or order of any other commission or other governmental authority (other than under state securities or blue sky laws, as to which such counsel are not called upon to express an opinion) is required for the issuance and sale of the Securities;
(vi) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee)Indenture, the Indenture will be a legalSecurities and this Agreement, valid and binding agreement the fulfillment of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on thereof and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized hereof by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default underunder any provision of, the Company's articles of incorporation or by-laws or any indenture, mortgage, deed of trust, lease trust or other material agreement or instrument, known to of which such counselcounsel has knowledge, to which the Company or any of its significant subsidiaries is now a party or by which or, to the Company or best of such counsel's knowledge, any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority agency or any arbitrator known to such counsel and applicable to body having jurisdiction over the Company or any of its significant subsidiariesactivities or properties;
(vii) the provisions of the Securities and the Indenture conform in all material respects as to legal matters to the statements concerning them contained in the Offering Memorandum under " " and -------------- " "; ---------------------------------------- (viii) the franchises, permits and licenses under which the Company operates in the States of Wisconsin, and are adequate to permit the Company -------- ----- to engage in the businesses which it presently conducts in those States and do not contain any unduly burdensome provisions; in those municipalities where the Company operates without franchises or where expired franchises have not been renewed, the lack of such franchises does not materially affect the Company's operations in such municipalities and no actions or proceedings are pending or, to such counsel's knowledge, threatened by such municipalities which would materially affect the Company's operations; (ix) it is not necessary in connection with the offer, sale and delivery of the Securities to you and (assuming such offer, sale and delivery are made in compliance with the provisions of the Purchase Agreement and in the manner contemplated by the Offering Memorandum) to each subsequent purchaser to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended; and
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which each document filed by the Company or any of its subsidiaries is a party or to which with the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus Securities and Exchange Commission ("Commission") pursuant to the Act that are not described Exchange Act, and incorporated by reference in the Final Offering Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant (except as to the Act that are financial statements and schedules and other financial and statistical data contained therein, as to which they need not described or incorporated in express any belief), at the Final Memorandum.
(xii) commencing time it was filed with the Company’s taxable year ended December 31Commission, 1998, the Company was organized and has operated complied as to form in conformity all material respects with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, Exchange Act and the Company’s present applicable instructions, rules and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act regulations of the Notes is required Commission thereunder. Such counsel's opinion set forth in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, paragraphs (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) above may be subject to the due qualifications that the enforceability of the Company's obligations under the Indenture and the Securities may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditor's rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing. Such opinion shall also state that such counsel has no knowledge of any litigation, pending or threatened, which challenges the validity of the Securities, the Indenture, or this Agreement, or which seeks to enjoin the performance of the Company's obligations thereunder or which might have a material adverse effect on the business, properties or financial condition of the Company except as disclosed in or contemplated by the Initial Purchasers of the agreements set forth in Section 8 hereofOffering Memorandum. In rendering any such opinion, such counsel may rely, rely as to factual matters of fact, to the extent such counsel deems proper, on upon certificates of responsible officers or written statements from others or other appropriate representatives of the Company or upon certificates of public officials. In such opinion, such counsel may state that while such counsel has examined the Offering Memorandum, such counsel necessarily assumes the correctness and public officials andcompleteness of the statements made and information included therein and takes no responsibility therefor, except insofar as such statements relate to matters involving such counsel and as set forth in paragraph (vii) above. Such counsel's opinion may further state that it is addressed to the application of laws of Initial Purchasers and is rendered solely for their benefit and may not be relied upon in any jurisdiction manner by any other person (other than to ----------------------- the State of New York or extent stated in its opinion to the United States or the General Corporation Law Initial Purchasers as of the State of DelawareClosing Date) without such counsel's prior written consent.
b. The Initial Purchasers shall have received from , to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the such ------------ opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasersopinions, dated the Closing Date, with respect to certain legal matters relating to this Agreement the issuance and such sale of the Securities, the Indenture, the Offering Memorandum (together with any supplement thereto) and other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and the Company shall have received and may rely upon furnished to such certificates and other counsel such documents and information as it may reasonably they request for the purpose of enabling them to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) c. The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its the Company, signed by the Chairman of the BoardBoard or the President and the principal financial or accounting officer of the Company, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to dated the Initial Purchasers Closing Date, to the effect that the signers of such certificate have carefully examined the Offering Memorandum, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made in all material respects on and as of the Closing Date; Date with the same effect as if made on the Closing Date and the Company has performed complied with all covenants and the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent since the date of the most recent financial statements included in the Offering Memorandum (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any supplement thereto).
d. At the Closing Date, , independent ---------------- accountants shall have furnished to the respective Initial Purchasers a letter or letters, dated as of the Closing Date, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants' " comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Offering Memorandum.
e. Subsequent to the date and time when this Agreement is executed and delivered by the parties hereto or, if earlier, the dates as of which information is given in the Final Memorandum Offering Memorandum, there shall not have been (exclusive i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 8 or (ii) any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancechange, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in or affecting the condition (financial business or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations properties of the Company the effect of which is, in the judgment of the Initial Purchasers, so material and adverse as to make it impractical or any inadvisable to proceed with the offering or delivery of its subsidiaries, taken the Securities as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum.
(e) Subsequent to the execution and delivery of this Agreement and prior f. Prior to the Closing Date, there the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request. If any of the conditions specified in this Section 8 shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to , this Agreement and all obligations of the Initial Purchasers such conformed copies hereunder may be canceled at, or at any time prior to, the Closing Date by the Initial Purchasers. Notice of such opinions, certificates, letters, and documents cancellation shall be given to the Company in such quantities as the Initial Purchasers shall reasonably requestwriting or by telephone or electronic transmittal confirmed in writing.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Units and any Additional Closing Date for the Optional Units. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Notes shallUnits are subject to the absence from any certificates, be subjectopinions, in written statements or letters furnished to the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made Purchaser pursuant to the provisions hereof, to the performance by the Company this Section 7 of its covenants and agreements hereunder any misstatement or omission and to the following additional conditions:conditions unless waived in writing by the Initial Purchaser.
(a) On The Initial Purchaser shall have received an opinion in form and substance reasonably satisfactory to the Initial Purchaser, dated the Closing Date, the Initial Purchasers shall have received a legal opinion from of M▇▇▇▇▇, M▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of & M▇▇▇▇▇▇▇ , LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered , counsel to the Initial Purchasers and counsel for Company, covering the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Dateset forth on Exhibit A hereto.
(b) The Initial Purchasers Purchaser shall have received a legal an opinion from of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (“Mintz L▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP”), counsel for to the Initial PurchasersPurchaser, dated the Closing Date, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, .
(c) The Initial Purchaser shall have received from M▇▇▇▇▇ R▇▇ ▇▇▇▇▇▇ & ▇S▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters datedLLP, respectivelyindependent public registered accounting firm for the Company, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel the Initial Purchaser and M▇▇▇▇ L▇▇▇▇, letters dated the date hereof and the Closing Date confirming that M▇▇▇▇▇ R▇▇ ▇▇▇▇▇▇ & S▇▇▇▇▇▇ LLP is an independent public registered accounting firm within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited financial statements for the Initial Purchasersfiscal years ended April 30, 2005 and 2006 and certain financial and statistical information contained in the Offering Memorandum.
(d) The Initial Purchaser shall have received from each of the officers and directors listed on Schedule 7(d) hereto an executed Lock-Up Agreement in substantially the form of Exhibit B hereto.
(e) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date, and the Company shall have furnished or caused complied in all material respects with all agreements and satisfied all conditions on its part to be furnished performed or satisfied hereunder at or prior to the Closing Date.
(f) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by this Agreement or any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers at Purchaser relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
(g) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change in, or affecting the business, condition (financial or other), properties or results of operations of, the Company or any Subsidiary not disclosed in the Offering Memorandum that is, in the judgment of the Initial Purchaser (in its sole discretion), so material and adverse as to make it impracticable or inadvisable to proceed with the Offering on the terms and in the manner contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any Subsidiary or any of their respective officers or directors that makes any statement of a material fact made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein not misleading.
(h) The Initial Purchaser shall have received a certificate, dated the Closing a certificate of its Chairman of Date and signed by the Board, its President or its and the Chief Executive Officer and its Chief Financial Officer satisfactory to of the Initial Purchasers Company, to the effect that:
(i) All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Date and, as of the Closing Date; and, all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with.
(ii) subsequent The issuance and sale of the Units pursuant to this Agreement and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the respective dates as issuance of which information is given the Securities or the Initial Purchaser’s activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
(iii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement theretothereto after the date hereof), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been occurred (A) any materially adverse change (including, without limitation, a change in management or control)change, or any development involving a prospective materially adverse change, in or affecting the business, condition (financial or otherwiseother), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth properties or results of operations of the Company or any of its subsidiariesSubsidiary, taken as a whole, except in each case as described in or not contemplated by the Final Offering Memorandum, or (B) any event or development relating to or involving the Company or any Subsidiary or any of their respective officers or directors that makes any statement of a material fact made in the Offering Memorandum (exclusive untrue or that requires the making of any amendment addition to or supplement theretochange in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein not misleading.
(iv) At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Memorandum, there shall exist no Default or Event of Default (as defined in the Indenture).
(ei) Subsequent Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be satisfactory in form and substance to the execution Initial Purchaser and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the respective parties theretothereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(gj) All proceedings taken in connection with the issuance of the Units and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall be satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(k) The Notes and Warrants shall have been approved for trading on PORTAL.
(l) On or before the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Company Company, and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(hm) On The Company shall have furnished or before caused to be furnished to the Initial Purchaser all Required Consents and Waivers (in form and substance satisfactory to the Initial Purchaser and its counsel) and such further certificates and documents as the Initial Purchaser shall have reasonably requested.
(n) At the Closing Date, the Initial Purchasers Company and counsel for the Trustee shall have entered into the Indenture and the Initial Purchasers Purchaser shall have received counterparts, conformed as executed, thereof and the Notes and the Guarantors endorsed thereon shall have been duly executed and delivered by the Company and the Guarantors, respectively, and the same shall have been duly authenticated by the Trustee.
(o) At the Closing Date, the Company and the Warrant Agent shall have entered into the Warrant Agreement and the Initial Purchaser shall have received counterparts, conformed as executed, thereof and the Warrants shall have been duly executed and delivered by the Company and duly authenticated by the Warrant Agent.
(p) The Company shall have granted and delivered to the Initial Purchaser or its designated nominees warrants to purchase a number of shares of Common Stock equal to 4% of the number of Underlying Shares, such further certificates, documents or other information as they may have reasonably requested warrants to be exercisable for a period of three years from the CompanyClosing Date at an initial exercise price equal to the volume weighted average price of the Common Stock during the 20 trading days ending on and including the trading day that is two trading days prior to the date of this Agreement. Such warrants shall contain provisions, including, without limitation, those pertaining to cashless exercise, antidilution protection and demand and piggyback registration rights, customarily contained in warrants received by the Initial Purchaser in investment banking and financing transactions. All such opinions, certificates, letters and letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for to the Initial PurchasersPurchaser. The Company shall furnish to the Initial Purchasers Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and documents instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The ------------------------------------------------- obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇ ▇▇▇▇▇▇ Chance US & ▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory for counsel to the Initial Purchaser, dated the Closing Date, substantially to the effect that:
(i) such counsel The Company has no reason to believe that (other than the financial statements been duly incorporated and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and Subsidiaries that are corporations or limited liability companies are validly existing as corporations and is in good standing as a corporation or limited liability company, as applicable, under the laws of their respective jurisdictions its jurisdiction of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of or organization, with all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material requisite corporate or limited liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full company power and authority to own, lease and operate their respective own its properties and assets conduct its business as now conducted, and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and .
(ii) All of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each the Company and those Subsidiaries that are corporations as of the Company’s significant subsidiariesClosing Date are duly authorized and validly issued, except are fully paid and nonassessable and were not issued in violation of any statutory preemptive rights; all of the outstanding ownership interests of all Subsidiaries that are limited liability companies will be duly authorized and validly existing and will not have been issued in violation of any statutory preemptive rights, or preemptive rights under the operating agreement or articles of organization of such limited liability companies. Except as otherwise set forth in the Final Memorandum, to our knowledge, there are owned beneficially by no outstanding (i) options, warrants or other rights to purchase from the Company free and clear the Subsidiaries, (ii) agreements or other obligations of the Company or any perfected security interests orof the Subsidiaries to issue or (iii) other rights to convert any obligation into, to or exchange any securities of, shares of capital stock of, or other equity securities of, the best knowledge Company or any of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;the Subsidiaries.
(iii) the statements set forth The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the heading “Description of Notes” . The Notes, when issued, will be substantially in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and form contemplated by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement . The Notes have been duly and validly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Company, will entitle the holders to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
(iv) The Global Note (as such term is defined in the Indenture) is substantially in the form contemplated by the Indenture.
(v) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture meets the requirements for qualification under the TIA. The Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be ) constitutes a legal, valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms (subjectterms, except as to enforcement of remedies, to applicable the enforceability thereof may be limited by bankruptcy, reorganization, insolvency, moratorium fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors’ ' rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIAand by general equitable principles.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private The Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are have been duly executed and delivered by the Company and authenticated by the Trustee in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture thereof by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the IndentureTrustee), will be constitute the legal, valid and legally binding obligations of the Company, will entitle the holder to the benefits of the Indenture, and will be enforceable against the Company in accordance with their terms (subjectterms, except as to enforcement of remedies, to applicable the enforceability thereof may be limited by bankruptcy, reorganization, insolvency, moratorium fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors’ ' rights generally from time to time in effect)and by general equitable principles.
(viiivii) the The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the . The Registration Rights Agreement has been duly authorized by the Company andand validly authorized, when duly executed and delivered by the Company (and, assuming due authorization, execution and delivery thereof by the Initial Purchasers)Purchaser, will be constitutes a legal, valid and legally binding agreement of the Company, Company enforceable against the Company in accordance with its terms (subjectterms, except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder the enforceability thereof may be limited by federal bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors' rights generally and state securities by general equitable principles.
(viii) Each of the Company and the Subsidiary Pledgor, as applicable, has all requisite corporate power and authority to execute, deliver and perform its obligations under the Pledge Agreement, dated the Closing Date, whereby the Company and the Subsidiary Pledgor pledge all of their Pledged Stock to the Collateral Agent for the benefit of the holders of the Notes. The Pledge Agreement has been duly and validly authorized, executed and delivered by the Company and the Subsidiary Pledgor and constitutes a valid and legally binding agreement of the Company and the Subsidiary Pledgor, as applicable, enforceable against them in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors' rights generally and public policy considerations)by general equitable principles.
(ix) Assuming receipt of consideration therefor and that the execution Subsidiary Guarantees are entered into for a valid corporate purpose, each of the Subsidiary Guarantors has all requisite corporate power and delivery authority to execute, deliver and perform its obligations under its respective Subsidiary Guaranty. Each Subsidiary Guaranty has been duly and validly authorized, executed and delivered by the applicable Subsidiary.
(x) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly authorized, executed and delivered by the Company of, and the Subsidiaries.
(xi) No consent, approval, authorization or order of any court or governmental agency or body or third party is required for the execution, delivery or performance by the Company or any Subsidiary of its obligations under, this Agreement, the Registration Rights Agreement, Agreement (except as may be required by the Indenture and the NotesSecurities Act, the Exchange Notes Act and the Private Exchange NotesTIA as contemplated therein), the issuanceIndenture, offering and sale of the Notes to Subsidiary Guaranties or the Initial Purchasers Pledge Agreement, or the consummation by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation or any of the other Subsidiaries party thereto, as applicable, of the transactions herein contemplated do not (x) require hereby or thereby that are to be completed prior to or on the consent, approval, authorization, registration or qualification of or with any governmental authoritydate hereof, except such as have been obtained or made (and specified disclosed in such opinion) the Final Memorandum or such as may be required by the state securities or Blue Sky laws of the various states of the United States of America laws.
(xii) The execution, delivery and other U.S. jurisdictions in connection with the offer and sale of the Notes performance by the Initial Purchasers Company and except those that may be required by the Act or Subsidiaries party thereto, as applicable, of this Agreement, the TIA in connection with the exchange offer contemplated by Indenture, the Registration Rights Agreement, or (y) the Pledge Agreement and the Subsidiary Guaranties and the consummation by the Company and the Subsidiaries party thereto of the transactions contemplated hereby and thereby will not conflict with or constitute or result in a breach of or a default under (or an event which with notice or passage of time or both would constitute a default under) any material contract (relying as to materiality solely upon a certificate of officers of the Company identifying such contracts) or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed certificate of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents incorporation or by-laws (or similar organizational document) of the Company or any of its significant subsidiariesthe Subsidiaries, or or, to such counsel's knowledge, violate any statute or any statute, judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;any of the Subsidiaries or any of their respective properties or assets.
(xxiii) the Company To such counsel's knowledge, there is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened threatened, any action, suit, proceeding, inquiry or investigation to which the Company or any of its subsidiaries the Subsidiaries is a party or to which the property or assets of the Company or any of its subsidiaries the Subsidiaries are subject, before or brought by any court, arbitrator or governmental agency or body which are reasonably likely to, individually or in the aggregate, have a Material Adverse Effect or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the Transactions.
(xiv) The use of the proceeds of the Notes by the Company, as described in the Final Memorandum under the caption "Use of Proceeds," will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
(xv) There are no legal or governmental proceedings to which the Company or any Subsidiary is subject that a party which would be required to be described in a prospectus forming part of a registration statement filed with the Commission pursuant to the Securities Act that are not described in the Final Preliminary Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in and the Final Memorandum.
(xiixvi) commencing with the Company’s taxable year ended December 31, 1998, Neither the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act nor any of the Notes Subsidiaries is required in connection with or immediately after the sale of the Notes to the Initial Purchasers as contemplated by this Agreement be sold hereunder and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection proceeds from such sale (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given described in the Final Memorandum (exclusive under the caption "Use of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(eProceeds") Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, will be an "investment company" as such term is defined for purposes in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder.
(xvii) The Notes satisfy the eligibility requirements of Rule 436(g)(2144A(d)(3) under the Securities Act.
(fxviii) The Indenture shall have been executed statements in the Final Memorandum under the caption "Description of Notes" and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the "Exchange Offer and Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information Rights," insofar as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with describe the provisions hereof only if they are satisfactory of the documents and instruments therein described, constitute fair summaries thereof accurate in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably requestrespects.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, Units shall be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from an opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Ruskin, Moscou, Evans & Faltischek, P.C., counsel for the Company, in form and sub▇▇▇▇▇e ▇▇▇▇▇▇▇▇ Chance US LLP, ▇▇▇ry to counsel for the CompanyInitial Purchaser, dated the Closing Date, substantially to the effect that:
(i) such counsel has no reason Each of the Company and its Subsidiaries is duly incorporated, validly existing and in good standing as a corporation under the laws of its jurisdiction of incorporation, with all requisite corporate power and authority to believe that (other than the financial statements own its properties and other financial information contained thereinconduct its business as now conducted, and as to which such counsel need express no opinion) described in the Final MemorandumOffering Circular, as of its date or except (A) where the date of such opinionfailure to do so will not have a Material Adverse Effect; and (B) with respect to the need for Einstein Acquisition Corp. to become qualified in each jurisdiction in which Einstein/Noah Bagel Corp. and Einstein/Noah Bagel Partners, included or includes any untrue statement of a material fact or omitted or omits L.P. conducted business prior to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading▇▇▇ ▇▇▇e hereof.
(ii) Except as set forth in the Final Offering Circular, to such counsel's knowledge, (A) no options, warrants or other rights to purchase from the Company any Equity Interests in the Company are outstanding, (B) no agreements, contracts, arrangements or other obligations of the Company to issue, or other rights granted by the Company to cause the Company to convert, any obligation into, or exchange any securities for, any Equity Interests in the Company are outstanding and (C) the Company is not obligated to have any of its securities registered under a registration statement filed by the Company under the Act with respect to any of the Securities pursuant to the Registration Rights Agreement, except that the holders of the Series F Preferred Stock will have the right to request inclusion in the shelf registration rights relating to the Warrants.
(iii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Notes, the Warrants and the Transaction Documents. Each Subsidiary Guarantor has all requisite corporate power and authority to execute, deliver and perform its obligations under its Guarantee and the Indenture.
(iv) The Notes have been duly and validly authorized and executed by the Company and, (A) when duly authenticated by the Trustee in accordance with the Indenture and when delivered by the Company and paid for by the Initial Purchaser in accordance with the terms of this Agreement, the Notes will constitute the valid and legally binding obligations of the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the CompanySubsidiary Guarantors, enforceable in accordance with their terms terms, except that the enforcement thereof may be subject to (subjecti) bankruptcy, as insolvency (including all laws relating to enforcement of remedies, to applicable bankruptcyfraudulent transfer), reorganization, insolvencyreceivership, moratorium moratorium, or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effectand (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought; and (B) the holders of the Notes will be entitled to the benefits of the Indenture; no holder .
(v) The Guarantees have been duly and validly authorized and executed by each Subsidiary Guarantor, and when the Notes are duly authenticated and delivered in accordance with the Indenture and when delivered to and paid for by the Initial Purchaser in accordance with the terms of securities this Agreement, will constitute the valid and legally binding agreement of each Subsidiary Guarantor, enforceable in accordance with its terms except that the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the Company has court before which any right which has not proceeding therefor may be brought.
(vi) The Exchange Notes and the Private Exchange Notes have been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated duly and validly authorized by the Registration Rights Agreement;
Company, (viiA) and when the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the CompanyCompany and each of the Subsidiary Guarantors, enforceable in accordance with their terms terms, except that the enforcement thereof may be subject to (subjecti) bankruptcy, as insolvency (including all laws relating to enforcement of remedies, to applicable bankruptcyfraudulent transfer), reorganization, insolvencyreceivership, moratorium moratorium, or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought; and (B) the holders of the Exchange Notes and Private Exchange Notes will be entitled to time in effect)the benefits of the Indenture.
(viiivii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations The Indenture is in sufficient form for qualification under the Registration Rights Agreement; the Registration Rights Agreement TIA. The Indenture has been duly authorized by the Company andand validly authorized, when duly executed and delivered by the Company (and each of the Subsidiary Guarantors, and, assuming due authorization, execution and delivery thereof by the Initial PurchasersTrustee, constitutes a valid and legally binding obligation of the Company and the Subsidiary Guarantors, enforceable against the Company and the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), will reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought.
(viii) The Registration Rights Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a legal, valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal or state securities laws or public policy considerations.
(ix) The Warrant Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that the enforcement thereof may be subject to (subjecti) bankruptcy, as insolvency (including all laws relating to enforcement of remedies, to applicable bankruptcyfraudulent transfer), reorganization, insolvencyreceivership, moratorium, or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought.
(x) The Warrants have been duly and validly authorized and executed by the Company and, when duly countersigned by the Warrant Agent in accordance with the Warrant Agreement and delivered and paid for by the Initial Purchaser, will have been duly issued and delivered and will constitute valid and legally binding obligations of the Company, entitled to the benefits of the Warrant Agreement, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought, provided the holders of the company's warrants, other than the Warrants, have agreed not to time exercise such warrants until there is an amendment to the Certificate of Incorporation to increase the authorized common stock of the Company.
(xi) When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants, the Warrant Shares will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights, provided the holders of the company's warrants, other than the Warrants, have agreed not to exercise such warrants until there is an amendment to the Certificate of Incorporation to increase the authorized common stock of the Company.
(xii) This Agreement has been duly and validly authorized, executed and delivered by the Company. This Agreement constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and except that (ii) general principles of equity (whether applied by a court of law or equity) and discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and or state securities laws and or public policy considerations).
(ixxiii) The statements set forth in the execution Final Offering Circular under the captions "Description of Units", Description of Notes", "Description of Warrants" and delivery by the Company of"Description of Capital Stock", and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale insofar as such statements purport to constitute a summary of the Notes legal matters and documents referred to therein, fairly summarize in all material respects the Initial Purchasers by legal matters and documents referred to therein.
(xiv) To the Company pursuant to this Agreement, the compliance by the Company with the other provisions knowledge of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, except as such term is defined set forth in the 1940 Act; and
(xi) such counsel does not know of any Final Offering Circular, no legal or governmental actions, suits or proceedings are pending or threatened to which the Company or any of its subsidiaries Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary of its subsidiaries the Company is subject that which, if determined adversely to the Company or such Subsidiary, would be required result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be described in a prospectus pursuant to sold hereunder or the Act that are not consummation of the other transactions described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated Offering Circular.
(xv) Except as set forth in the Final MemorandumOffering Circular, the execution and delivery of this Agreement and each of the Transaction Documents and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Units to the Initial Purchaser) will not conflict with or constitute or result in a material breach or violation of or a default under (or an event which with notice or passage of time or both would constitute a material default under) (i) any of the terms or provisions of (A) any indenture, mortgage, deed of trust, loan agreement, note, or (B) any material lease, license, franchise agreement, Permit, certificate, contract or other agreement or instrument to which the Company or any Subsidiary of the Company is a party, except, with respect to each of clauses (A) and (B) hereof, for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws of the Company, or (iii) any existing applicable Federal, New York or Delaware statute, law, rule or regulation, which are normally applicable to corporations such as the Company (other than the securities or blue sky laws of the various states, as to which, in each case, such counsel need express no opinion), or any judgment, order or decree of any court, governmental agency or body or arbitrator applicable to the Company, its Subsidiaries or any of their respective properties or assets, except for any such conflict, breach, violation, default or event would not, individually or in the aggregate, have a Material Adverse Effect.
(xiixvi) commencing with To the Company’s taxable year ended December 31knowledge of such counsel, 1998no consent, approval, authorization or order of any domestic governmental authority is required for the issuance and sale by the Company was organized of the Units to the Initial Purchaser or the other transactions contemplated hereby or by the Transaction Documents, except such as have previously been obtained and has operated in conformity with the requirements for qualification such as a real estate investment trust (“REIT”) may be required under the Code, and the Company’s present and proposed method of operationapplicable state securities or Blue Sky laws, as represented by the Company, will permit the Company to continue which such counsel need express no opinion pursuant to so qualifythis clause (xvi).
(xiiixvii) No registration under Based upon the Act representations, warranties and agreements of the Notes Company in Sections 1 and 5 of this Agreement and of the Initial Purchaser in Section 8 of this Agreement, it is required not necessary in connection with the offer, sale and delivery of the Notes Units to the Initial Purchasers as contemplated by Purchaser under this Agreement and the Final Memorandum or in connection with the initial resale of the Notes such Units by the Initial Purchasers Purchaser in accordance with Section 8 4 of this AgreementAgreement to register the Units under the Securities Act, and prior it being understood that no opinion is expressed as to any subsequent resale of any Unit. Prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA.
(xviii) Neither the consummation of the transactions contemplated by this Agreement or any of the Transaction Documents nor the sale, issuance, execution or delivery of the Units will violate Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System.
(xix) The provisions of the Pledge and Security Agreement are effective to create a legal, valid and enforceable security interest in all right, title and interest of the Issuer in and to the Collateral (as defined in the Pledge and Security Agreement), in favor of the Collateral Agent, for the benefit of the Secured Parties (as defined in the Pledge and Security Agreement), as security for the payment of the Obligations.
(xx) When each case Grantor (as defined in the Pledge and Security Agreement) delivers to the Collateral Agent in the State of New York (for the benefit of the Secured Parties) the certificated Securities described in a schedule to the Pledge and Security Agreement (together with duly authorized and executed stock powers or other instruments of transfer executed in blank) (collectively, the Pledged Collateral), and, assuming (i) (A) that continued possession of the purchasers who buy such Notes Pledged Collateral by the Collateral Agent in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or State of New York and (B) that the offer Collateral Agent does not have notice prior to or sale on the date of the Notes is made in an offshore transaction as defined in Regulation S, (ii) delivery of such Pledged Collateral of any "adverse claim" within the accuracy meaning of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may relyUniform Commercial Code, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than in effect in the State of New York or (the United States or "N.Y. UCC"), the General Corporation Law Collateral Agent will be a "protected purchaser" as defined in Section 8-303(a) of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateN.Y. UCC.
(bxxi) The Initial Purchasers shall have received UCC-1 Financing Statements described in a legal schedule to such opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPare in appropriate form and, counsel for when duly filed in each of the Initial Purchasers, dated States and with the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering filing offices identified in such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given will result in the Final Memorandum (exclusive perfection of any amendment or supplement thereto)all security interests in all Collateral which can be perfected under the Uniform Commercial Code, neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fireas in effect in such State, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.filing
Appears in 1 contract
Sources: Senior Secured Increasing Rate Notes Agreement (New World Coffee Manhattan Bagel Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subjectSecurities on the Closing Date hereunder is subject to the fulfillment, in the Initial Purchasers’ ' sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Issuers, be contemplated. No order suspending the sale of the Securities in any jurisdiction designated by the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel been issued and no proceedings for the Company, dated the Closing Datethat purpose shall have been commenced or shall be pending or, to the effect that:knowledge of the Issuers, shall be contemplated.
(ib) such counsel has no reason Subsequent to believe that the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the condition (other than financial or other), business, prospects, properties, net worth, or results of operations of the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Company or the date Subsidiaries, which in the opinion of such opinionthe Initial Purchasers, included would materially adversely affect the market for the Securities.
(c) The Initial Purchasers shall not have been advised by the Issuers or includes any shall not have concluded and disclosed to the Company that the Offering Memorandum contains an untrue statement of a fact which in the opinion of the Initial Purchasers or their counsel is material fact or omitted or omits to state any a fact which in the opinion of the Initial Purchasers or their counsel, is material fact and is 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.
(iid) The Initial Purchasers shall have received on the Closing Date an opinion of Mayor, Day, Cald▇▇▇▇ & ▇eet▇▇, ▇.L.P., counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, to the effect that: (i) the Company is a corporation duly incorporated and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have Delaware with full corporate power and authority to own, lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (KCS Energy Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Paul, Hastings, Janofsky & Walker LLP, counsel for the Company, in form and substance ▇▇▇▇▇▇▇▇ Chance US LLP, ▇ly ▇▇▇▇▇▇actory to counsel for the Company, dated the Closing DateInitial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained thereinThe Company is duly incorporated, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations and in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation incorporation, and are duly qualified has all requisite corporate power and authority to transact own its properties and to conduct its business as foreign corporations described in the Offering Memorandum. Each of the Subsidiaries listed on Schedule 3 hereto (such subsidiaries, the "Significant Subsidiaries") is validly existing and are in good standing under the laws of its respective jurisdiction of incorporation, formation or organization, as the case may be, and has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite power and authority (corporate and other) to own, lease and operate their respective own its properties and assets conduct its business as now conducted and conduct their respective businesses as described in the Final Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;.
(iiiii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action Each of the Company and the Agreement Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction listed on a schedule to such opinion.
(iii) The Company and each Significant Subsidiary, as applicable, has all requisite corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the Private Exchange Notes; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly validly authorized by the Company and each Significant Subsidiary and, when duly executed and delivered by each of the Company Issuers (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the Indenture will be a legal, valid and binding agreement of each of the Company and each Significant Subsidiary, enforceable against the Company and each of the Significant Subsidiaries in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance and transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforce- ment of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance.
(iv) The Notes are substantially in the form attached to the Indenture. The Notes have each been duly and validly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with its terms their terms, except that the enforcement thereof may be subject to (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance and transfer, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to time in effect). The Indenture meets limit the requirements for qualification under the TIAavailability of equitable remedies such as specific performance.
(viv) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms terms, except that the enforcement thereof may be subject to (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance and transfer, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to time in effect)limit the availability of equitable remedies such as specific performance.
(viiivi) The Guarantees are substantially in the form attached to the Indenture. The Guarantees and the guarantees of the Exchange Notes and the Private Exchange Notes have been duly and validly authorized by each Significant Subsidiary and, when executed by each of the Subsidiary Guarantors and when the Notes are duly executed and delivered against payment therefor and are authenticated by the Trustee in accordance with the provisions of the Indenture, such Guarantees and such guarantees of the Exchange Notes will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of each Significant Subsidiary, entitled to the benefits of the Indenture and enforceable against the Subsidiary Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance and transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance.
(vii) Each of the Company and the Significant Subsidiaries has all requisite corporate corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the Company and, when duly executed and delivered by each of the Company Issuers (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, constitute the valid and legally binding agreement of each of the CompanyCompany and each Significant Subsidiary, enforceable against the Company and each Significant Subsidiary in accordance with its terms terms, except that (subjectA) the enforcement thereof may be subject to (i) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance and transfer, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effect and except that (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations)considerations including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance.
(viii) Each of the Company and the Significant Subsidiaries has all requisite corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company and each of the Significant Subsidiaries of the transactions contemplated hereby have been duly and validly authorized by the Company and each of the Significant Subsidiaries. This Agreement has been duly executed and delivered by the Company and each of the Significant Subsidiaries.
(ix) The Indenture, the execution and delivery by Notes, the Company of, Guarantees and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(x) The execution, delivery and performance by the Company of its obligations under, this Agreement, the Indenture, the Registration Rights AgreementAgreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering issuance and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do Purchasers) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms and or provisions ofof any Material Contract, except for any such conflict, breach, violation, default or constitute event that would not, individually or in the aggregate, have a default underMaterial Adverse Effect, any indenture, mortgage, deed (ii) the certificate of trust, lease incorporation or other material agreement bylaws (or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws similar organizational document) of the Company or any of its significant subsidiariesthe Significant Subsidiaries, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any statute U.S. federal, New York or any California State or Delaware General Corporation Law statute, judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and to be applicable to the Company or its significant subsidiaries;any of the Significant Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect. For purposes hereof, a "Material Contract" means the agreements and instruments listed on a schedule to such opinion.
(xxi) No consent, approval, authorization or order of any U.S. federal or New York or California State governmental authority is required for the issuance and sale by the Company is not an “investment company” and, after giving effect to the Offering of the Notes to the Initial Purchasers or the consummation by the Company of the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained.
(xii) None of the Company or any Significant Subsidiary is, and immediately following the consummation of the transactions contemplated by this Agreement and the application of the net proceeds therefromfrom the sale of the Notes pursuant to this Agreement (as described in the Offering Memorandum under the caption "Use of Proceeds") will be, will not be an “"investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be " required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) registered under the Code, and the Company’s present and proposed method Investment Company Act of operation1940, as represented by the Company, will permit the Company to continue to so qualifyamended.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Offering Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or (B) that the offer or ---- sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinionAt the time the foregoing opinion is delivered, such counsel may relyPaul, as to matters of factHastings, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Janofsky & Walker LLP shall additionally state that it ▇▇▇ p▇▇▇▇▇▇▇ LLP. An opinion of ▇▇te▇ ▇▇ ▇▇▇fer▇▇▇▇▇ LLP shall be delivered to with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchasers and counsel for the Initial Purchasers covering Purchasers, at which conferences the contents of the Offering Memorandum and related matters reasonably requested by were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the Initial Purchasersaccuracy, completeness or fairness of the statements contained in the Offering Memorandum (except to the extent specified in subsection 7(a)(ix)), on the basis of the foregoing (relying as to materiality to a certain extent upon the opinions of officers and other representatives of the Company and its Subsidiaries) no facts have come to its attention which lead it to believe that the Offering Memorandum, on the date thereof or at the Closing Date, 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 contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need make no statement with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Company's books and records included in the Offering Memorandum). The opinion of Paul, Hastings, Janofsky & Walker LLP described in this Section shall be rendered to t▇▇ ▇▇▇▇▇al ▇▇▇▇▇▇sers at the request of the Company and shall so state therein. References to the Final Offering Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon & Reindel llp, counsel for the Initial Purchasers, with ▇▇▇▇▇▇▇ ▇▇ ▇▇rta▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal l matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇▇ LLP Reindel llp shall have received and may rely upon such certificates and other ▇▇▇▇▇▇▇▇▇▇▇▇ an▇ ▇▇▇▇▇ documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP the Independent Accountants a comfort letter or letters dated, respectively, dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company Issuers contained in this Agreement are shall be true and correct as if made or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on and as the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date; and the Company has Issuers shall have performed or complied with all covenants and agreements and satisfied all conditions on its their part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ Purchaser’s sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Offering Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Offering Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Offering Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be is a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial PurchasersPurchaser), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers Purchaser by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers Purchaser and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Offering Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Offering Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers Purchaser as contemplated by this Agreement and the Final Offering Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ Purchaser’s representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial PurchasersPurchaser, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers Purchaser and counsel for the Initial Purchasers Purchaser covering matters reasonably requested by the Initial PurchasersPurchaser. References to the Final Offering Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersPurchaser, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers Purchaser at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers Purchaser to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers Purchaser and counsel for the Initial Purchasers Purchaser shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser. The Company shall furnish to the Initial Purchasers Purchaser such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, under this Agreement are subject to the accuracy satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained herein as of in this Agreement shall be true and correct on the date hereof Closing Date with the same force and as of each Closing Date, effect as if made on and as of each the date hereof and the Closing Date, respectively. The Company shall have performed or complied with all of their obligations and agreements herein contained and required to be performed or complied with by them at or prior to the accuracy Closing Date.
(b) No stop order suspending the sale of the statements Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Series A Notes; (ii) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Series A Notes; and (iii) on the Closing Date no action, suit or proceeding shall be pending against or affecting or, to the knowledge of the Company’s officers made pursuant , threatened against, the Company or any Subsidiary before any court or arbitrator or any governmental body, agency or official which, if adversely determined, would prohibit the issuance of the Series A Notes except as disclosed in the Offering Memorandum.
(i) Since the date hereof or since the dates as of which information is given in the Preliminary Offering Memorandum or Offering Memorandum, there shall not have been any Material Adverse Change, (ii) since the date of the latest balance sheet included in the Preliminary Offering Memorandum or Offering Memorandum, and except as described or contemplated in the Offering Memorandum there shall not have been any material change in the capital stock or long-term debt, or material increase in short-term debt, of the Company or any of the Subsidiaries and (iii) the Company and the Subsidiaries shall have no liability or obligation, direct or contingent, that is material to the provisions hereofCompany and the Subsidiaries taken as a whole and is required to be disclosed on a balance sheet in accordance with GAAP and is not disclosed on the latest balance sheet included in the Offering Memorandum.
(e) You shall have received certificates, to dated the performance Closing Date, signed by (i) the President or any Vice President or any other executive officer and (ii) a principal financial or accounting officer of the Company confirming, as of its covenants the Closing Date, the matters set forth in paragraphs (a), (b), (c) and agreements hereunder and to the following additional conditions:(d) of this Section 8.
(af) On the Closing Date, the Initial Purchasers you shall have received a legal an, opinion from ▇▇▇▇▇▇(satisfactory to you and your counsel), dated the Closing Date, of Alst▇▇ Chance US LLP& Bird, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the The Company and each of the Subsidiaries (other than those Subsidiaries organized under laws other than the United States or its “significant subsidiaries” (as defined in Rule 1.02(wpolitical subdivisions and Printpack Illinois, Inc.) of Regulation S-X under the Exchange Act) have been is a duly organized and are validly existing as corporations corporation in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under incorporation, has the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate their respective its properties and assets to conduct its business as it is currently being conducted and conduct their respective businesses as described in the Final Offering Memorandum, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction where the ownership, leasing or operation of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not, singly or in the aggregate, have a Material Adverse Effect;
(ii) The Company has all necessary corporate power and authority to enter into this Agreement, execute and deliver the Registration Rights Agreement Transaction Documents and the Indenture Notes, and to carry out all perform its obligations under the terms Transaction Documents and provisions hereof and thereof and of the Notes and to be carried out by it; all of authorize issue, sell and deliver the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except Notes as otherwise set forth in the Final Memorandum, are owned beneficially contemplated by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsPurchase Agreement;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the The Purchase Agreement has been duly executed authorized and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly validly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be constitutes a legal, legally valid and binding agreement of the Company, enforceable against the Company it in accordance with its terms (subjectterms, as to enforcement of remedies, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, insolvency, moratorium or other and similar laws affecting creditors’ ' rights generally from time and to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action principles of the Company andequity, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement whether at law or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect equity and except that any as rights to indemnity or and contribution thereunder may be limited by federal and state securities laws and public policy considerationsconsiderations underlying such laws;
(iv) The issuance and sale of the Series A Notes has been duly authorized by the Company, and all legally required corporate proceedings by the Company in connection with the issuance and sale of the Series A Notes have been taken; when authenticated in accordance with the terms of the Indentures and delivered to and paid for by the you in accordance with the terms of the Purchase Agreement, the Series A Notes will be legally valid and binding agreements of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indentures, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity, whether at law or in equity;
(v) The issuance of the Series B Notes has been duly authorized by the Company and all legally required corporate proceedings by the Company in connection with the issuance of the Series B Notes have been taken; when authenticated in accordance with the terms of the Indentures and delivered to and paid for by you in accordance with the terms of the Registered Exchange Offer and the Indentures, the Series B Notes will be the legally valid and binding agreements of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indentures, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity, whether at law or in equity;
(vi) The Indentures have been duly authorized by the Company and conform in all material respects to the description thereof in the Offering Memorandum; assuming due authorization, execution and delivery thereof by the Trustee, the Indentures constitute the legally valid and binding agreements of the Company, enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought at law or in equity).;
(vii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and to principles of equity, whether at law or in equity and except as rights to indemnity and contribution thereunder may be limited by federal and state securities laws and public policy considerations underlying such laws and except as rights to indemnity and contribution thereunder may be limited by federal and state securities laws and public policy considerations underlying such laws;
(viii) To such counsel's knowledge, all of the outstanding shares of capital stock of the Company have been duly authorized, validly issued, and are fully paid and nonassessable and were not issued in violation of any preemptive rights or similar rights;
(ix) the execution The Reorganization has been consummated and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes conforms in all material respects to the Initial Purchasers by description thereof in the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not Offering Memorandum;
(x) require All of the consentissued and outstanding shares of capital stock of, approvalor other ownership interests in, authorizationeach Subsidiary have been duly and validly authorized and issued. Based solely upon a review of the stock records of each Subsidiary, registration all of the shares of capital stock of, or qualification other ownership interests in, each Subsidiary are owned, directly or through Subsidiaries, by the Company. To the best knowledge of or with any governmental authoritysuch counsel, all shares of capital stock are fully paid and nonassessable, and are owned free and clear of all Liens, except such as have been obtained or made for Liens (i) created pursuant to the New Credit Facility and specified in such opinionthe Receivables Facility, (ii) or such as may be required permitted by the securities Indentures or Blue Sky laws of (iii) that will be released on the various states of the United States of America and other U.S. jurisdictions Closing Date in connection with the offer and sale closing of the Notes by Transactions. Such opinion need not cover Subsidiaries organized under laws other than the Initial Purchasers United States and except those that may be required by the Act its political subdivision or the TIA authorization and issuance of capital stock of Printpack Illinois, Inc.;
(xi) To such counsel's knowledge, there are no outstanding subscriptions, rights, warrants, options, calls, convertible securities, commitments of sale or Liens (except for Liens (i) created pursuant to the New Credit Facility and the Receivables Facility and Liens, subscriptions and other rights and commitments in connection with the exchange offer organization and operation of Flexible Funding Corp. as contemplated in the Receivables Facility, (ii) permitted by the Registration Rights Agreement, or Indentures and/or (yiii) conflict that will be released on the Closing Date in connection with or result in a breach or violation of any the closing of the terms and provisions Transactions) related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or constitute a default underother ownership interest in, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws Subsidiary;
(xii) Neither of the Company or any of its significant subsidiariesthe Subsidiaries is (a) an "investment company" or a company "controlled" by an investment company within the meaning of the Investment Company Act of 1940, as amended, or any statute (b) a "holding company" or any judgmenta "subsidiary company" of a holding company or an "affiliate" thereof within the meaning of the Public Utility Holding Company Act of 1935, decreeas amended;
(xiii) The descriptions in the Offering Memorandum, orderas of its date and on the Closing Date, rule under the captions "Prospectus Summary The Reorganization"; the description of the registration of the "Printpack" trademark under "Business Patents and Trademarks"; Environmental Matters and Government Regulation"; "Legal "Proceedings"; and "Management Incentive and Deferred Compensation" insofar as such statements constitute a summary of legal matters, documents or regulation of proceedings referred to therein, to such counsel's knowledge with respect to factual matters, fairly and accurately present or summarize in all material respects such legal matters, documents and proceedings; and to such counsel's knowledge, there is no action, suit or proceeding before or by any court or other governmental authority agency or any arbitrator known to such counsel and applicable to the Company body, domestic or its significant subsidiaries;
(x) the Company is not an “investment company” andforeign, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal pending against or governmental proceedings pending or threatened to which affecting the Company or any of its subsidiaries is a party or to which the property of the Company Subsidiaries, or any of its subsidiaries their respective properties, which is subject that would be required to be described disclosed and is not so disclosed, in the Offering Memorandum, or which would result, singly or in the aggregate, in a prospectus pursuant Material Adverse Effect or which would materially and adversely affect the consummation of this Agreement or the transactions contemplated hereby, and to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers best knowledge of the Company and public officials andthe Subsidiaries, as to matters involving the application of laws of any jurisdiction other than the State of New York no such proceedings are contemplated or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Datethreatened.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The several obligation of the Initial Purchasers to purchase the Firm Notes on the Closing Date and pay for the any Option Notes shall, be subject, in the Initial Purchasers’ sole discretion, on an Option Closing Date are subject to the accuracy accuracy, as of the Closing Date or the relevant Option Closing Date, as the case may be, of the representations and warranties of the Company Kaydon contained herein as of the date hereof herein, and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company Kaydon of its covenants and agreements obligations hereunder and to the following additional conditions:conditions (any of which may be waived in writing by the Initial Purchasers):
(a) On the Closing Date or the relevant Option Closing Date, as the case may be, the Initial Purchasers shall have received a legal opinion from the opinion, dated as of the Closing Date or the relevant Option Closing Date, as the case may be, and addressed to the Initial Purchasers (and stating that it may be relied upon by counsel to the Initial Purchasers), of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Chance US LLPPLLC, counsel for Kaydon, in form and substance satisfactory to counsel for the Company, dated the Closing DateInitial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than Each of Kaydon and the financial statements and other financial information contained thereinSubsidiaries is duly organized, validly existing and, as to which such counsel need express no opinion) Kaydon and the Final MemorandumSubsidiaries that are corporations, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation organization, and are duly qualified to transact business as foreign corporations and are in good standing under the laws of has all requisite corporate or other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum, . Each of Kaydon and the Company has corporate power Subsidiaries is duly qualified to enter into this Agreementdo business and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except to the Registration Rights Agreement and extent that the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes failure to be carried out by itso qualified or in good standing would not have a Material Adverse Effect on Kaydon and its Subsidiaries, taken as a whole.
(ii) Kaydon has the authorized capital stock as set forth under "Capitalization" in the Memorandum; all of the outstanding shares of Common Stock are fully paid and non-assessable and were not issued and in violation of any preemptive or similar rights or any federal or state securities laws; all of the outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, Subsidiaries are owned beneficially by the Company Kaydon or another Subsidiary, to such counsel's knowledge, free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, all liens, encumbrances, equities and claims or claims, except for pledges restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of subsidiary stock under debt instruments;certain jurisdictions) or voting.
(iii) the statements To such counsel's knowledge, except as set forth in the Memorandum or in a document incorporated by reference into the Memorandum, (A) there are no outstanding options, warrants or other rights to purchase from Kaydon or any Subsidiary shares of capital stock or ownership interests in Kaydon or any Subsidiary, (B) there are no outstanding agreements or other obligations of Kaydon or any Subsidiary to issue, or other rights to cause Kaydon or any Subsidiary to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in Kaydon or any Subsidiary and (C) no holder of securities of Kaydon or Subsidiary (other than the Notes) is entitled to have such securities registered under a registration statement filed by Kaydon.
(iv) Kaydon has all requisite corporate power and authority to execute, deliver and perform its obligations under the heading “Description of Notes” in , the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes Indenture and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings Registration Rights Agreement.
(v) The Indenture conforms in all material respects as would be required to be disclosed in a prospectus pursuant to with the requirements of the Trust Indenture Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement Commission applicable to an indenture that is qualified thereunder. The Indenture has been duly and validly authorized, executed and delivered by the Company;
(v) the execution Kaydon, and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof of the Indenture by the Trustee), ) constitutes the Indenture will be a legal, valid and binding agreement of the CompanyKaydon, enforceable against the Company Kaydon in accordance with its terms terms, except to the extent that the enforcement thereof may be affected by (subjectA) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time and (B) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta proceeding in equity or at law). The Indenture meets the requirements for qualification under the TIA.
(vi) The Notes are in the form contemplated by the Indenture. The Notes have each been duly authorized by all necessary corporate action of the Company andand validly authorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company Kaydon and, assuming due authentication when paid for by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company Initial Purchasers in accordance with the terms of the Registration Rights this Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and binding obligations of Kaydon, entitled to the Companybenefits of the Indenture and the Registration Rights Agreement, and enforceable against Kaydon in accordance with their terms terms, except to the extent that the enforcement thereof may be affected by (subjectA) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time and (B) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta proceeding in equity or at law).
(viiivii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the The Registration Rights Agreement has been duly authorized by the Company andand validly authorized, when duly executed and delivered by the Company Kaydon, and (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, ) constitutes the valid and binding agreement of the Company, Kaydon enforceable against the Company Kaydon in accordance with its terms terms, except to the extent that (subjectA) the enforcement thereof may be affected by (i) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effect a proceeding in equity or at law) and except that (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(viii) Kaydon has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement and the consummation by Kaydon of the transactions contemplated hereby have been duly and validly authorized by Kaydon. This Agreement has been duly executed and delivered by Kaydon.
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to To such counsel's knowledge, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties there are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(xA) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any no legal or governmental proceedings pending or threatened to which the Company Kaydon or any of its subsidiaries Subsidiary is a party or to which the property or assets of the Company Kaydon or any of its subsidiaries Subsidiary is subject that which would be required under the Act to be described in a registration statement or in a prospectus pursuant and are not described or incorporated by reference in the Memorandum, or which seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described or incorporated by reference in the Memorandum and (B) no contracts, agreements or other documents to which Kaydon or any Subsidiary is a party which would be required under the Act that to be described in a registration statement or prospectus and are not described in the Final Memorandum Memorandum.
(x) To such counsel's knowledge, neither Kaydon nor any Subsidiary is in violation of its certificate of incorporation or by-laws or other comparable organizational documents.
(xi) The execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement, and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Notes to the Initial Purchasers) will not conflict with or constitute or result in a breach or a default or Repayment Event under (or an event which with notice or passage of time or both would constitute a default or Repayment Event under), or in the imposition or creation of (or the obligation to create or impose) a lien, charge or encumbrance on any property or assets of Kaydon or any statutesSubsidiary with respect to, regulations, contracts (i) the certificate of incorporation or by-laws or other comparable documents that of Kaydon or any Subsidiary, (ii) except as would not be required to be described in a prospectus pursuant to the Act that are not described reasonably expected, individually or incorporated in the Final Memorandumaggregate, to have a Material Adverse Effect on Kaydon and the Subsidiaries, taken as a whole, any statute, agreement or instrument to which Kaydon or any of the Subsidiaries is a party or by which any of them is bound or to which any of their properties is subject, or (iii) any order, rule, regulation or decree of any court or governmental agency or body having jurisdiction over Kaydon or any of the Subsidiaries or any of their properties.
(xii) commencing No consent, approval, authorization or order of any governmental authority is required for the issuance and sale by Kaydon of the Notes to the Initial Purchasers or the other transactions contemplated in this Agreement, except (A) as may be required under applicable securities laws in connection with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) registration under the CodeAct of the Notes, and the Company’s present shares of Common Stock issuable upon conversion of the Notes, pursuant to the Registration Rights Agreement and proposed method of operation, (B) as represented by the Company, will permit the Company may be required under state securities or "Blue Sky" laws (as to continue to so qualifywhich such counsel need express no opinion).
(xiii) Neither Kaydon nor any of the Subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds from such sale (as described in the Memorandum under the caption "Use of Proceeds") will be, an "investment company" or "controlled" by an "investment company" as such terms are defined in the Investment Company Act, and the rules and regulations thereunder.
(xiv) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIATrust Indenture Act, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) QIBs or Accredited Investors, (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company Kaydon contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iiiC) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering hereof and the offering and transfer procedures set forth in the Memorandum.
(xv) Neither the sale, issuance, execution or delivery of the Notes nor any other transaction contemplated by this Agreement will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
(xvi) The statements under the captions "Description of Notes," "Description of Capital Stock" and "Notice to Investors; Transfer Restrictions" in the Memorandum or incorporated therein by reference, insofar as such opinion, such counsel may rely, as statements constitute a summary of the documents referred to therein or matters of factlaw, to the extent provide a fair and accurate summary in all material respects of such counsel deems proper, on certificates documents and matters.
(xvii) The shares of responsible officers Common Stock initially issuable upon conversion of the Company Notes have been duly authorized and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law reserved for issuance upon conversion of the State Notes by all necessary corporate action of DelawareKaydon and when issued will be validly issued, fully paid and non-assessable; and no preemptive rights of stockholders exist with respect to any of the extent satisfactory shares of Common Stock to be issued upon conversion of the Notes.
(xviii) The statements under the caption "Certain U.S. Federal Income Tax Considerations" in form the Memorandum, insofar as such statements constitute a summary of matters of U.S. federal tax laws referred to therein, provide a fair and scope to counsel for accurate summary in all material respects of such matters under current law. At the Initial Purchaserstime the foregoing opinion is delivered, upon the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP. An opinion PLLC shall additionally state that it has participated in conferences with officers and other representatives of ▇▇▇▇▇▇▇ LLP shall be delivered to Kaydon, representatives of the independent public accountants for Kaydon, representatives of the Initial Purchasers and counsel for the Initial Purchasers covering Purchasers, at which conferences the contents of the Memorandum and related matters reasonably requested by were discussed. Although it has not independently verified and is not passing upon and assumes no responsibility for the Initial Purchasers. References accuracy, completeness or fairness of the statements contained in the Memorandum (except to the Final Memorandum extent specified in this subsection (a7(a)(xvii) shall include any amendment and 7(a)(xix)), nothing has come to its attention that causes it to believe that the Memorandum, on the date thereof or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date or the relevant Option Closing Date, as the case may be, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (it being understood that such firm need express no belief with respect to the financial statements and related notes thereto and the other financial or statistical data included in, or incorporated by reference into, the Memorandum). In rendering its opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PLLC may state that they express no opinion as to the laws of any jurisdiction other than the federal laws of the United States and the laws of the States of New York and Delaware.
(b) The Initial Purchasers shall have received a legal opinion from an opinion, dated the Closing Date or the relevant Option Closing Date, as the case may be, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇▇▇, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement Agreement, and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters datedErnst & Young LLP, respectivelyindependent public accountants for Kaydon, comfort letters, dated the date hereof, the date hereof and the Closing Date, and, if applicable, any Option Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company Kaydon contained in this Agreement are shall be true and correct in all material respects on and as of the Closing Date as if made on and as of the Closing Date or the relevant Option Closing Date, as the case may be; and the Company has Kaydon shall have performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or the relevant Option Closing Date, as the case may be; and
(ii) subsequent to the respective dates , except as of which information is given set forth in the Final Memorandum (exclusive of any amendment or supplement thereto)thereto after the date hereof) subsequent to the date of the most recent financial statements in such Memorandum, neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not shall have been any materially adverse change (including, without limitation, a change in management or control), no event or development involving a prospective materially adverse changethat, individually or in the condition (financial aggregate, has or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as would be reasonably likely to have a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)Material Adverse Effect.
(e) Subsequent The issuance and sale of the Notes pursuant to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall any notice have been given of issued or any intended action, suit or potential downgrading proceeding shall have been commenced with respect to this Agreement before any court or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Actgovernmental authority.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after a certificate, dated the Closing Date.
(h) On Date or before the relevant Option Closing Date, as the Initial Purchasers case may be, signed by Kaydon's chief executive officer and counsel for its treasurer to the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters effect that:
(i) The representations and documents delivered pursuant to warranties of Kaydon in this Agreement will comply with the provisions hereof only if they are satisfactory true and correct in all material respects to as if made on and as of the Initial Purchasers and counsel for Closing Date or the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinionsrelevant Option Closing Date, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.th
Appears in 1 contract
Sources: Purchase Agreement (Kaydon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, discovered and disclosed to the effect that:
(i) Company prior to or on such counsel has no reason to believe Delivery Date that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or the date of such opinion, included any amendment or includes supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material fact or omitted or omits to state any fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and each of its “significant subsidiaries” information that they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇▇ Godward LLP shall have furnished to the Initial Purchasers their written opinion, as defined counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in Rule 1.02(wform and substance satisfactory to the Initial Purchasers, to the effect that:
(i) of Regulation S-X under the Exchange Act) have The Company has been duly organized and are is validly existing as corporations a corporation in good standing under the laws of their respective jurisdictions the State of incorporation and are Delaware, and, based solely on certificates of public officials, is duly qualified to transact do business as foreign corporations and are is in good standing under as a foreign corporation in each jurisdiction in which its ownership or lease of property or the laws conduct of all other jurisdictions its business requires such qualification, except where such counsel has been advised that the failure to be so qualified would amount to not have a material liability adverse effect on the Company, whether or disability to not arising in the Company ordinary course of business, and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full has all corporate power and authority necessary to own, lease and operate their respective own or hold its properties and assets and conduct their respective the businesses in which it is engaged, as described in the Final Offering Memorandum; and, and to the knowledge of such counsel, the Company has no subsidiaries;
(ii) the Conversion Shares, which are authorized on the date hereof, have been duly and validly authorized and reserved for issuance upon conversion of the Notes by all necessary corporate power action and are free of preemptive rights; all Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable and free and clear of all liens, encumbrances, equities or claims imposed by or arising from actions of the Company;
(iii) The statements in the Offering Memorandum under the captions "Description of the Notes" and "Description of Capital Stock", insofar as they purport to enter into summarize the provisions of the Indenture, the Registration Rights Agreement, the Notes and the Common Stock (including the Conversion Shares) are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act;
(iv) There is no restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's certificate of incorporation or bylaws;
(v) To the knowledge of such counsel and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company is a party or of which any property or asset of the Company is the subject which, if determined adversely to the Company might have a material adverse effect on the Company or which might reasonably be expected to materially and adversely affect the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder; to the actual knowledge of such counsel, no such proceedings are overtly threatened or contemplated by governmental authorities or, except as set forth or contemplated in the Offering Memorandum, overtly threatened by others; and, to the actual knowledge of such counsel, the aggregate of all pending legal or governmental proceedings to which the Company is a party or of which any of its property or assets is the subject (other than the Company's patent applications currently pending before the U.S. Patent and Trademark Office or before any foreign governmental authority that administers the registration of patents) which are not described in the Offering Memorandum, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a material adverse effect on the Company.
(vi) The execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions issuance of the Notes and the Indenture, provide a fair summary of such provisions; Conversion Shares and the statements set forth consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificate of incorporation or bylaws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties or assets; and, except as may be required by the securities or "blue sky" laws of any state of the United States in connection with the sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company and the issuance of the Notes and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby;
(vii) No registration of the Notes or the Conversion Shares under the heading “Securities Act, and no qualification of the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Notes or in connection with the conversion of the Notes into Conversion Shares, in each case, in the manner contemplated by the Offering Memorandum, this Agreement and the Indenture;
(viii) The statements in the Offering Memorandum under the caption "Certain United States Federal Income Tax Consequences” in the Final MemorandumConsiderations", insofar as such statements they purport to constitute a summary summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material respects as would be to the extent required to be disclosed if such statements were contained in a prospectus pursuant to registration statement on Form S-3 under the Act and the Exchange Act and the respective rules and regulations thereunderSecurities Act;
(ivix) The Company is not an "investment company" within the execution and delivery meaning of this Agreement have been duly authorized by the Investment Company Act of 1940, as amended;
(x) The Company has all necessary corporate action right, power and authority to execute and deliver each of the Company Operative Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Notes and the Conversion Shares to the Initial Purchasers;
(xi) This Agreement has been duly authorized, executed and delivered by the Company;
(vxii) the execution and delivery of the The Indenture have has been duly authorized by the Company andauthorized, when duly executed and delivered by the Company (and, assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be constitutes a legal, legally valid and binding agreement of the Company, Company enforceable against the Company in accordance with its terms (subjectexcept as the enforceability thereof may be limited by bankruptcy, as to enforcement of remediesinsolvency, to applicable bankruptcyfraudulent transfer, reorganization, insolvency, moratorium and other similar laws relating to or other laws affecting creditors’ ' rights generally from time generally, subject to time general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in effect). The Indenture meets the requirements for qualification under the TIA.a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing;
(vixiii) the Notes have The Registration Rights Agreement has been duly authorized by all necessary corporate action of the Company andauthorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be constitutes a legal, valid and legally binding agreement of the Company, Company enforceable against the Company in accordance with its terms (subject, except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), by an implied covenant of good faith and fair dealing; and
(xiv) The Notes have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and the Delaware General Corporation Law and may state securities laws that it is relying, in respect of matters of New York law, upon ▇▇▇▇▇ & Wood LLP, and in respect of matters of fact, upon certificates of officers of the Company, PROVIDED that such counsel shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with officers and other representatives of the Company, the Company's independent public policy considerationsaccountants, the Initial Purchasers and their counsel, at which the contents of the Offering Memorandum were discussed, and while such counsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (other than the financial statements, financial and statistical data and supporting schedules as to which such counsel shall make no statement), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ixd) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel and Secretary of the execution Company, shall have furnished to the Initial Purchasers his written opinion, addressed to the Initial Purchasers and delivery by dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that:
(i) The authorized, issued and outstanding capital stock of the Company, as of September 30, 1999, is as set forth in the Offering Memorandum under the column entitled "Actual" under the caption "Capitalization", and 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 nonassessable;
(ii) Except as disclosed in the Offering Memorandum, there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, and the performance by any shares of Common Stock pursuant to any agreement or other instrument to which the Company is a party known to such counsel; the issuance of its obligations underthe Conversion Shares, upon conversion of the Notes in accordance with the terms of the Indenture, will not be subject to the preemptive or other similar rights of any securityholder of the Company and
(iii) The execution, delivery and performance of this Agreement, the Registration Rights Agreement, the Indenture and the Notes, Registration Rights Agreement and the Exchange issuance of the Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Conversion Shares and the consummation of the other transactions herein contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease loan agreement or other material agreement or instrument, instrument known to such counsel, counsel to which the Company or any of its significant subsidiaries is a party or by which the Company is bound or to which any of its significant subsidiaries the property or any of their respective properties are bound, or the charter documents or by-laws assets of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such is subject. Such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes shall also have furnished to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreementa written statement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes addressed to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any dated such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that he has no reason to believe that the statements under the captions "Risk Factors--Our patents may not protect our products and our products may infringe on third-party patent rights" and "Patents and Proprietary Rights" in the Offering Memorandum, as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) ▇▇▇▇▇ & Wood LLP, shall have furnished to the Initial Purchasers their written opinion, as counsel for to the Initial Purchasers, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers.
(df) With respect to the letter of Ernst & Young LLP delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished or caused to be furnished to the Initial Purchasers at on such Delivery Date a certificate, dated such Delivery Date and delivered on behalf of the Closing a certificate Company by one of its Chairman of the Board, its President or its Chief Executive Officer co-chief executive officers and its Chief Financial Officer chief financial officer, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect that:
(i) the representations The representations, warranties and warranties agreements of the Company in this Agreement Section 1 are true and correct as if made on of the date given and as of the Closing such Delivery Date; and the Company has performed complied in all covenants and material respects with all its agreements and satisfied all conditions on its part contained herein to be performed or satisfied at or prior to the Closing or on such Delivery Date; and;
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the A) The Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in sustained since the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations date of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.late
Appears in 1 contract
Sources: Annual Report
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes Securities shall, be subject, in the Initial Purchasers’ its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from ▇the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇▇ Chance US ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, dated in form and substance reasonably satisfactory to counsel for the Closing DateInitial Purchaser, substantially to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each Subsidiaries of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X the Company that are organized under the Exchange Actlaws of the state of Delaware (each a “Delaware Subsidiary” and collectively, the “Delaware Subsidiaries”) have been duly organized and are is validly existing as corporations and in good standing under the laws of their respective jurisdictions the state of incorporation Delaware and are duly qualified to transact business as foreign corporations and are in good standing under has the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material requisite corporate or limited liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full company power and authority to own, lease and operate their respective own its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum. Relying solely on good standing certificates issued by the secretaries of state, and the Company has corporate power and each Delaware Subsidiary is duly qualified to enter into this Agreementdo business as a foreign corporation or limited liability company, as the case may be, in good standing in the jurisdictions set forth opposite its name on a schedule annexed to such opinion as of the dates set forth on such schedule.
(ii) Based solely on such counsel’s review of the membership interest transfer ledger of CHAAS Holdings, LLC (the “Parent”), the Registration Rights Agreement Parent has the issued and outstanding capitalization set forth in the Indenture first paragraph under the heading “Security Ownership of Certain Beneficial Owners and to carry out all Management” in the terms and provisions hereof and thereof and of the Notes to be carried out by itFinal Memorandum; all of the issued and outstanding shares of capital stock of each equity interests of the Company’s significant subsidiariesCompany and the Delaware Subsidiaries reflected in the stock or membership interest transfer ledgers of the Company and such Delaware Subsidiaries have been validly issued, and are fully paid and nonassessable and, to the knowledge of such counsel, were not issued in violation of any contractual preemptive or similar rights; except as otherwise disclosed in the Final Memorandum, based solely on such counsel’s review of the membership interest transfer ledger or stock transfer ledger of the Company and the Delaware Subsidiaries, as applicable, all of the outstanding equity interests of the Company and the Delaware Subsidiaries are owned of record, directly or indirectly, by the Parent, and, to such counsel’s knowledge, other than a pledge of the outstanding equity interests of the Delaware Subsidiaries to the lenders under the Credit Agreement, free and clear of all perfected security interests.
(iii) Except as set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, no holder of securities of the Company or any Delaware Subsidiary (other security intereststhan a holder of Securities, liens, encumbrances, equities Exchange Notes or claims, except for pledges of subsidiary stock Private Exchange Notes) is entitled to have such securities registered under debt instruments;a registration statement filed by the Company pursuant to the Registration Rights Agreement.
(iiiiv) the statements set forth The Company has all requisite corporate power and authority to execute and deliver and perform its obligations under the heading “Description of Notes” in Indenture, the Final MemorandumSecurities, insofar as such statements purport to summarize certain provisions of the Exchange Notes and the Indenture, provide a fair summary of such provisionsPrivate Exchange Notes; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar Indenture complies as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings form in all material respects as would be required to be disclosed in a prospectus pursuant to with the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action requirements of the Company and TIA; the Agreement Indenture has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company andvalidly authorized, when duly executed and delivered by the Company and (assuming the due authorization, execution and delivery thereof by the Trustee), ) constitutes the Indenture will be a legal, valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that the enforcement thereof may be subject to (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generally from time to time in effect). The Indenture meets and (ii) general principles of equity and the requirements for qualification under discretion of the TIAcourt before which any proceeding therefor may be brought.
(viv) The Securities are in the Notes form contemplated by the Indenture. The Securities have each been duly authorized by all necessary corporate action of the Company andand validly authorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, when paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Securities by the TrusteeTrustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder , and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of securities equity and the discretion of the Company has court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;proceeding therefor may be brought.
(viivi) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and and, when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generally from time to time in effect)and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(viiivii) the The Company has all requisite corporate company power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company andand validly authorized, when duly executed and delivered by the Company and (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, other parties thereto) constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that (subject, as A) the enforcement thereof may be subject to enforcement of remedies, to applicable (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ rights generally from time to time in effect and except that (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(viii) The Company has all requisite corporate company power and authority to execute, deliver and perform their obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company. This Agreement has been duly executed and delivered by the Company.
(ix) The statements under the execution captions “Description of Material Indebtedness,” “Description of the Notes,” and delivery by “Exchange Offer; Registration Rights” in the Company ofFinal Memorandum insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings, and the statements made in the Final Memorandum under the heading “Certain U.S. Federal Income Tax Considerations,” insofar as such statements summarize certain federal income tax laws of the United States, constitute a fair summary of the principal U.S. federal income tax consequences of an investment in the Securities.
(x) To the knowledge of such counsel, except as described in the Final Memorandum, no legal or governmental proceedings are pending or threatened that seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities hereunder or the consummation of the other transactions described in the Final Memorandum under the caption “Use of Proceeds.”
(xi) The execution, delivery and performance by the Company of its obligations under, this Agreement, the Indenture, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not hereby and thereby (x) require including, without limitation, the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer issuance and sale of the Notes by Securities to the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (yPurchaser) will not conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) after giving effect to the effectiveness of the Amendment annexed to such opinion and the application of the proceeds from the issuance and sale of the Securities as described in the Final Memorandum, the terms and or provisions ofof any Contract listed on a schedule reasonably acceptable to the Initial Purchaser, except for any such conflict, breach, violation, default or constitute event that would not, individually or in the aggregate, have a default underMaterial Adverse Effect, any indenture(ii) the certificate of incorporation or bylaws, mortgagecertificate of formation or operating agreement, deed of trustas applicable, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiariesthe Delaware Subsidiaries, or (iii) (assuming compliance with all applicable state securities or “Blue Sky” laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof) any statute or any statute, judgment, decree, order, rule or regulation known to and believed by such counsel to be normally applicable to transactions of the type contemplated by this Agreement, the Indenture and the Registration Rights Agreement, except for any such conflict, breach, default or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xii) No consent, approval, authorization or order of any court or other governmental authority is required for the issuance and sale by the Company of the Securities to the Initial Purchaser or any arbitrator known the consummation by the Company of the other transactions contemplated hereby, except such as may be required under Blue Sky or state securities laws, as to which such counsel need express no opinion, and applicable to the Company or its significant subsidiaries;those which have previously been obtained.
(xxiii) the Company is not an “investment company” and, after After giving effect to the Offering sale of the Notes Securities to be sold hereunder and the application of the proceeds therefromfrom such sale (as described in the Final Memorandum under the caption “Use of Proceeds”), will not be none of the Company or the Delaware Subsidiaries is an “investment company”, ” as such term is defined in the 1940 Act; and
(xi) such counsel does not know Investment Company Act of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes1940, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumas amended.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiiixiv) No registration under the Act of the Notes Securities is required in connection with the sale of the Notes Securities to the Initial Purchasers Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes Securities by the Initial Purchasers Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes Securities in the initial resale thereof are qualified institutional buyers (“QIBs”) as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ Purchaser’s representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes Securities to the Initial Purchasers Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to .
(xv) Neither the extent such counsel deems proper, on certificates of responsible officers consummation of the Company and public officials andtransactions contemplated by this Agreement nor the sale, as to matters involving the application of laws of any jurisdiction other than the State of New York issuance, execution or the United States or the General Corporation Law delivery of the State Securities will violate Regulation T, U or X of Delaware, to the extent satisfactory in form and scope to counsel for Board of Governors of the Initial Purchasers, upon the Federal Reserve System. The opinion of ▇▇▇▇▇▇▇ LLP▇▇▇▇ & ▇▇▇▇▇ LLP may be subject to customary exceptions, assumptions and qualifications reasonably acceptable to the Initial Purchaser. An At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP shall additionally state that it has participated in conferences with officers and other representatives of the Parent and the Company, representatives of the independent public accountants for the Parent and the Company, representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(x)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, 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 contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Company’s books and records included in the Final Memorandum). The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP described in this Section shall be delivered rendered to the Initial Purchasers Purchaser at the request of the Company and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasersshall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from the opinion, in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing DatePurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP each of the Independent Accountants a comfort letter or letters dated, respectively, dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company contained in this Agreement are shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company has shall have performed all covenants and agreements and satisfied all conditions on its their part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) subsequent to the respective dates , except as of which information is given described in the Final Memorandum (exclusive of any amendment or supplement theretothereto after the date hereof), neither subsequent to the Company nor any date of its subsidiaries has sustained any material loss the most recent financial statements in such Final Memorandum, there shall have been no event or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceedingdevelopment, and there has not been any materially adverse change (includingno information shall have become known, without limitationthat, a change in management individually or control), or development involving a prospective materially adverse change, in the condition aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations e) The sale of the Company Securities hereunder shall not be enjoined (temporarily or any permanently) on the Closing Date.
(f) Subsequent to the date of its subsidiaries, taken as a whole, except the most recent financial statements in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.an
Appears in 1 contract
Sources: Purchase Agreement (Advanced Accessory Holdings Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from the opinion, in form and substance satisfactory to counsel for the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇▇▇ Chance US & ▇▇▇▇▇ LLP, counsel for the Company, dated substantially in the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as form of its date or the date of Exhibit A hereto. In rendering such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇▇ LLP. An opinion of ▇▇& ▇▇▇▇▇ LLP shall be delivered have received and may rely upon such certificates and other documents and information as it may reasonably request to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Datepass on such matters.
(b) The On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from the opinion, in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing DatePurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP the Independent Accountants a comfort letter or letters dated, respectively, dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company contained in this Agreement are shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company has shall have performed all covenants and agreements and satisfied all conditions on its their part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) subsequent to the respective dates , except as of which information is given described in the Final Memorandum (exclusive of any amendment or supplement theretothereto after the date hereof), neither subsequent to the date of the most recent financial statements in such Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Other than as disclosed in the Final Memorandum, subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company nor or any of its subsidiaries has the Subsidiaries shall have sustained any material loss or interference with their respective businesses respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute dispute, slow down or work stoppage or from any legal or governmental proceeding, and there has not been any materially adverse change (includingorder or decree, without limitationwhich loss or interference, a change in management individually or control), or development involving a prospective materially adverse change, in the condition aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(financial or otherwise)g) The Initial Purchaser shall have received a certificate of the Company, managementdated the Closing Date, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations signed on behalf of the Company by its Chairman of the Board, President or any Senior Vice President and the Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions on its subsidiariespart to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, taken as a wholesince the date hereof or since the date of the most recent financial statements in the Final Memorandum, except as disclosed in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement theretothereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has had or would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(gh) On the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(hi) The Company shall have delivered to counsel for the Initial Purchaser executed copies of the amendment to the senior secured revolving credit facility, dated as of the Closing Date, on the terms described in the Final Memorandum, by and among Town Sports International, Inc., Deutsche Bank Trust Company Americas and the other lenders listed therein (the "Credit Facility Amendment"), which Credit Facility Amendment shall be in full force and effect as of the Closing Date, and shall have taken all other actions necessary to consummate the "other refinancing transactions" (as defined in the Final Memorandum). On or before the Closing Date, the Initial Purchasers Purchaser and counsel for the Initial Purchasers Purchaser shall have received such further documents, opinions, certificates, documents letters and schedules or other information instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they may shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, letters and documents letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser. The Company shall furnish to the Initial Purchasers Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and documents instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Town Sports International Holdings Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received discovered and disclosed to the Company prior to or on such Delivery Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a legal fact which, in the opinion from of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a is material fact or omitted or omits to state any fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(iib) All corporate proceedings and other legal matters incident to the Company authorization, form and each validity of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized Operative Documents and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation Offering Memorandum or any amendment or supplement thereto, and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability legal matters relating to the Company Operative Documents and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority transactions contemplated thereby shall be satisfactory in all material respects to own, lease and operate their respective properties and assets and conduct their respective businesses as described in counsel to the Final MemorandumInitial Purchasers, and the Company has corporate power shall have furnished to enter into this Agreement, the Registration Rights Agreement such counsel all documents and the Indenture and information that they may reasonably request to carry out all the terms and provisions hereof and thereof and of the Notes enable them to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of pass upon such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsmatters;
(iiic) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be delivered have furnished to the Initial Purchasers its written opinion, as counsel to the Company, addressed to the Initial Purchasers and counsel for dated such Delivery Date, substantially in the form attached hereto as Exhibit A-1, and its negative assurance letter substantially in the form attached hereto as Exhibit A-2.
(d) ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company, shall have furnished to the Initial Purchasers covering matters reasonably requested by his written opinion, as General Counsel to the Company, addressed to the Initial Purchasers. References to Purchasers and dated such Delivery Date in the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.form attached hereto as Exhibit B.
(be) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Delivery Date, with respect to certain legal matters relating to this Agreement the issuance and such sale of the CODES and Guarantees, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require. In rendering such opinionrequest, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and the Company shall have received and may rely upon furnished to such certificates and other counsel such documents and information as it may they reasonably request require for the purpose of enabling them to pass upon such matters.;
(cf) The At the time of the First Delivery Date, the Initial Purchasers shall have received from PricewaterhouseCoopers each of PricewaterhouseCoopers, LLP and KPMG LLP a letter or letters dated, respectively, the date hereof and the Closing Dateletter, in form and substance satisfactory to counsel for the Initial Purchasers., addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and under Rule 101 of AICPA's Code of Professional Conduct and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings;
(dg) The With respect to the letters of PricewaterhouseCoopers, LLP and KPMG LLP referred to in the preceding paragraph and delivered to the Initial Purchasers (the "initial letter"), on any subsequent Optional Delivery Date, the Company shall have furnished or caused to be furnished to the Initial Purchasers at a letter (the Closing "bring-down letter") of such accountants, in form and substance satisfactory to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and Code of Professional Conduct are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a certificate date not more than five days prior to the date of its the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter;
(h) The Company and the Guarantors shall have furnished to the Initial Purchasers a certificate, dated such Delivery Date and delivered on behalf of the Company or the Guarantors as the case may be, of their respective Chairman of the Board, its their respective President or its Chief Executive Officer a Vice President and its Chief Financial Officer their respective chief financial officer, in form and substance satisfactory to the Initial Purchasers to the effect stating that:
(i) the representations The representations, warranties and warranties agreements of the Company and the Guarantors in this Agreement Section 1 are true and correct as if made on of the date given and as of the Closing such Delivery Date; and the Company has performed and the Guarantors have complied with all covenants and their agreements and satisfied all conditions on its part contained herein to be performed or satisfied at or prior to the Closing or on such Delivery Date; and
(ii) subsequent They have carefully examined the Offering Memorandum and, in their opinion (A) the Offering Memorandum as of its date and as of the Closing Date did not include any untrue statement of a material fact and did not omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the respective dates as Offering Memorandum.
(i) Subsequent to the execution and delivery of which information is given this Agreement (i) no downgrading shall have occurred in the Final Memorandum rating accorded the Company's debt securities by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and (exclusive ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any amendment or supplement thereto)of the Company's debt securities;
(j) The Indenture shall have been duly executed and delivered by the Company and the Trustee and the CODES shall have been duly executed and delivered by the Company and duly authenticated by the Trustee;
(k) The Company, neither the Guarantors and the Initial Purchasers shall have executed and delivered the Registration Rights Agreement (in form and substance satisfactory to the Initial Purchasers) and the Registration Rights Agreement shall be in full force and effect;
(l) The NASD shall have accepted the CODES for trading on PORTAL;
(i) Neither the Company nor any of its subsidiaries has shall have sustained since the date of the latest audited financial statements included in the Offering Memorandum any material loss or interference with their respective businesses or properties its business from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, order or decree, except (A) as set forth or incorporated by reference or contemplated in the Offering Memorandum and (B) for operating losses incurred in the ordinary course of business, or (ii) since such date there has shall not have been any materially adverse change (including, without limitation, a change in management the capital stock or controllong-term debt of the Company and its subsidiaries (except for issuances of shares of Common Stock upon exercise of outstanding options described or incorporated by reference in the Offering Memorandum or pursuant to Authorized Grants), or any change, or any development involving a prospective materially adverse change, in or affecting the condition (financial or otherwise)general affairs, management, earnings, properties, business affairs or business prospectsfinancial position, stockholders’ equity, net worth ' equity or results of operations of the Company or any of and its subsidiaries, taken except as a wholeset forth or incorporated by reference or contemplated in the Offering Memorandum, except the effect of which, in each any such case as described in clause (i) or (ii), is, in the reasonable judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the CODES and the Guarantees being delivered on such Delivery Date on the terms and in the manner contemplated by in the Final Memorandum (exclusive of any amendment or supplement thereto).Offering Memorandum;
(en) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingof the following:
(i) trading in securities generally on the NYSE, nor the American Stock Exchange, the NASDAQ National Market or the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall any notice have been given suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any intended such exchange or potential downgrading market by the Commission, by such exchange or of by any review for other regulatory body or governmental authority having jurisdiction;
(ii) a possible change that does not indicate the direction banking moratorium shall have been declared by Federal or state authorities of the possible changeUnited States or there shall have occurred any other calamity or crisis (including, without limitation, as a result of terrorist activities);
(iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or there shall have occurred any other calamity or crisis (including, without limitation, as a result of terrorist activities); or
(iv) there shall have occurred such a material adverse change in general domestic or international economic, political or financial conditions, including without limitation as a result of terrorist activities after the date hereof, or the effect of international conditions on the financial markets in the United States shall be such, as to make it in the case of (iii) or (iv), in the sole judgment of a majority in interest of the Representatives, impracticable or inadvisable to proceed with the offering or delivery of the CODES being delivered on such Delivery Date on the terms and in the manner contemplated in the Offering Memorandum.
(o) On or prior to the First Delivery Date, The Depositary Trust Company shall have accepted the CODES for clearance.
(p) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded any of the Company’s 's debt securities by any “"nationally recognized statistical rating organization”, ," as such that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act.
Securities Act and (fii) The Indenture no such organization shall have been executed and delivered by all the parties thereto.
(g) On the Closing Datepublicly announced that it has under surveillance or review, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Datewith possible negative implications, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from its rating of any of the Company's debt securities. All opinions, certificatesletters, letters evidence and documents delivered pursuant to certificates mentioned above or elsewhere in this Agreement will comply shall be deemed to be in compliance with the provisions hereof only if they are in form and substance satisfactory in all material respects to counsel to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (L 3 Communications Holdings Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Chance US ▇▇, LLP, special Massachusetts counsel for the Company, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchasers, to the effect that:
(i) The Company is duly incorporated and is validly existing under the laws of Massachusetts and has all requisite corporate power and authority to own or lease its properties and to conduct its business in the manner in which it presently is conducted. The Company is duly qualified to do business as a foreign corporation in good standing in the jurisdictions set forth on an annex to such opinion.
(ii) The Company has the authorized, issued and outstanding capitalization set forth in the Final Memorandum; all of the outstanding shares of capital stock of the Company have been duly authorized and validly issued, and are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; the Company's authorized capital stock conforms to the description thereof contained in the Final Memorandum.
(iii) The Company has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the Registration Rights Agreement; each of the Indenture, the Notes, the Exchange Notes and the Registration Rights Agreement has been duly and validly authorized by the Company; the Indenture, the Notes and the Registration Rights Agreement have been duly executed and delivered by the Company.
(iv) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company. This Agreement has been duly executed and delivered by the Company.
(v) The execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Notes to the Initial Purchasers) will not contravene or constitute or result in a breach or a default under or violation of any of (i) the articles of organization or bylaws of the Company, or (ii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof and assuming compliance with the Act with respect to the exchange of the Notes for the Exchange Notes and the obligations of the Company under the Registration Rights Agreement) any Massachusetts statute, judgment, decree, order, rule or regulation known to such counsel has no reason to believe that be applicable to the Company or any of its properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(vi) No consent, approval, authorization or order of any Massachusetts governmental authority is required for the issuance and sale by the Company of the Notes to the Initial Purchasers or the consummation by the Company of the other than the financial statements and other financial information contained thereintransactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion) the Final Memorandum, as and those which have previously been obtained. The opinion of its date or the date ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP described in this Section may be limited to matters of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company Massachusetts law and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to shall be so qualified would amount to a material liability or disability rendered to the Company and its subsidiaries, taken as a whole; Initial Purchasers at the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action request of the Company and shall so state therein.
(b) On the Agreement has been duly executed Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and delivered by addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company;, in form and substance satisfactory to counsel for the Initial Purchasers, to the effect that:
(vi) The Indenture conforms to the requirements for qualification under the TIA (assuming due execution and delivery of the Indenture have been duly authorized thereof by the Company andand the Trustee and provided that such counsel need express no opinion with respect to the Statement of Eligibility of the Trustee on Form T-1); the Indenture, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the Indenture will be a legal, valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms (subjectterms, as to enforcement of remedies, subject to applicable bankruptcy, insolvency, reorganization, insolvencymoratorium, moratorium fraudulent transfer or other similar laws now or hereafter in effect relating to or affecting creditors’ ' rights and remedies generally from time and to time general principles of equity (regardless of whether enforcement is sought in effecta proceeding at law or in equity). The Indenture meets the requirements for qualification under the TIA.
(viii) The Notes are substantially in the Notes have been duly authorized by all necessary corporate action form of Exhibit A to the Company andIndenture. The Notes, on and as of the Closing Date, the Notes will have been when duly executed and delivered by the Company andand paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, assuming execution and delivery of the Indenture by the Company and the Trustee and due authentication and delivery of the Notes by the TrusteeTrustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of , and enforceable against the Company has any right which has not been fully exercised in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or waived other similar laws now or hereafter in effect relating to require the Company or affecting creditors' rights and remedies generally and to register the offer or sale general principles of any securities owned by such holder under the Act equity (regardless of whether enforcement is sought in the offering of the Notes contemplated by this Agreement a proceeding at law or in the Exchange Offer contemplated by the Registration Rights Agreement;equity).
(viiiii) the The Exchange Notes and the Private Exchange Notes have been duly authorized by the CompanyNotes, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Company and the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), and when duly and validly exchanged for the Notes, and assuming compliance with federal or state securities laws, will be constitute the legal, valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms (subjectterms, as to enforcement of remedies, subject to applicable bankruptcy, insolvency, reorganization, insolvencymoratorium, moratorium fraudulent transfer or other similar laws now or hereafter in effect relating to or affecting creditors’ ' rights and remedies generally from time and to time general principles of equity (regardless of whether enforcement is sought in effecta proceeding at law or in equity).
(viiiiv) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the The Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms (subjectterms, as to enforcement of remedies, subject to applicable bankruptcy, insolvency, reorganization, insolvencymoratorium, moratorium fraudulent transfer or other similar laws now or hereafter in effect relating to or affecting creditors’ ' rights and remedies generally from time and to time general principles of equity (regardless of whether enforcement is sought in effect a proceeding at law or in equity) and except to the extent that any rights to indemnity indemnification or contribution thereunder provisions may be limited by federal and state securities laws and public policy considerations)unenforceable.
(ixv) Except as set forth in the execution and delivery Final Memorandum, no holder of securities of the Company or any Subsidiary is entitled pursuant to any Contract identified to such counsel in a certificate of the Company as being a material instrument to have such securities registered under a registration statement filed by the Company ofpursuant to the Registration Rights Agreement.
(vi) The Company is not in breach or default under (nor has any event occurred which, with notice or passage of time or both, would constitute a default under) or in violation of any of the terms or provisions of any Contract identified to such counsel in a certificate of the Company as being a material instrument, except for any such breach, default, violation or event which would not, individually or in the aggregate, have a Material Adverse Effect.
(vii) The execution, delivery and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the NotesRegistration Rights Agreement (including, without limitation, the Exchange Notes and the Private Exchange Notes, the issuance, offering issuance and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do Purchasers) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of the terms and or provisions of, or constitute a default under, as they exist on the Closing Date of any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known Contract identified to such counsel, to which the Company or any of its significant subsidiaries is counsel in a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws certificate of the Company as being a material instrument, except for any such conflict, breach, violation, default or any of its significant subsidiariesevent which would not, individually or in the aggregate, have a Material Adverse Effect, or (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof and assuming compliance with the Act with respect to the exchange of the Notes for the Exchange Notes and the obligations of the Company under the Registration Rights Agreement and excluding federal and state securities laws and regulations as to which such counsel shall not express an opinion pursuant to this paragraph (vii)) any statute or any statute, judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and to be applicable to the Company Company, except for any such conflict, breach or its significant subsidiaries;violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(xviii) No consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company is not an “investment company” and, after giving effect to the Offering of the Notes to the Initial Purchasers or the consummation by the Company of the other transactions contemplated hereby (assuming compliance with federal and state securities laws in connection with or pursuant to the Registration Rights Agreement and provided that such counsel need express no opinion in this paragraph (viii) regarding indemnification provisions), except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained.
(ix) None of the Company or the Subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds therefromfrom such sale (as described in the Final Memorandum under the caption "Use of Proceeds") will be, will not required to be registered as an “"investment company”, " as such term is defined in the 1940 Act; and
(xi) such counsel does not know Investment Company Act of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes1940, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumas amended.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiiix) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement Agreement, the Indenture and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Registered Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under exempt from the qualification requirements of the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act ("Accredited Investors") or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation and compliance with their respective agreements as set forth in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof this Agreement and (iii) that the due performance offering of the Notes will be conducted solely in the manner contemplated by this Agreement, the Indenture and the Final Memorandum.
(xi) Neither the consummation by the Initial Purchasers Company of the agreements set forth in Section 8 hereof. In rendering any such opiniontransactions contemplated by this Agreement nor the sale, such counsel may relyissuance, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers execution or delivery of the Notes by the Company and public officials andwill result in a violation by the Company of Regulation G, as to matters involving the application of laws of any jurisdiction other than the State of New York T, U or the United States or the General Corporation Law X of the State Board of DelawareGovernors of the Federal Reserve System. At the time the foregoing opinion is delivered, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be delivered to additionally state that it has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchasers and counsel for the Initial Purchasers covering Purchasers, at which conferences the contents of the Final Memorandum and related matters reasonably requested were discussed, because the purpose of its professional engagement was not to establish or confirm factual matters and because the scope of its examination of the affairs of the Company did not permit it to verify the accuracy, completeness or fairness of the statements set forth in the Final Memorandum, it is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent set forth below in clause (ii) of the following sentence), and on the basis of the foregoing, no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related schedules and notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). The opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall also state that (i) to its knowledge, there are no legal or governmental proceedings involving or affecting the Company or any of its properties or assets which would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or which seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Final Memorandum under the caption "Use of Proceeds" and (ii) to the extent that the Final Memorandum contains descriptions of certain provisions of the Indenture, the Notes and the Registration Rights Agreement, such descriptions have been reviewed by it and are correct in all material respects. The opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP described in this Section may be limited to matters of New York, Federal and Delaware corporate law and shall be rendered to the Initial PurchasersPurchasers at the request of the Company and shall so state therein. References to the Final Memorandum in this subsection (ab) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely as to matters of fact to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials which are furnished to the Initial Purchasers.
(bc) The On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.P
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Purchased Notes shall, on the Closing Date will be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements obligations hereunder and to the following additional conditionsconditions precedent:
(a) On the Closing DateThe Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Business Loans and related Loan Files shall have been delivered to the Indenture Trustee pursuant to the Transfer and Servicing Agreement.
(b) The Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Companycertificate, dated the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Executive or Senior Vice President of the Company to the effect that such officer has carefully examined this Agreement, the Final Memorandum and the Transaction Documents and that:
, to the best of such officer's knowledge (i) since the date information is given in the Final Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Business Loans except as contemplated by the Final Memorandum or as described in such counsel certificates, (ii) the representations and warranties of the Company set forth herein are true and correct as of the Closing Date, (iii) the Company has no reason complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or the date of such opinion, included or includes any Additional Offering Document contains an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iic) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) The Class A Notes shall have been duly organized rated no less than "Aaa" by ▇▇▇▇▇'▇, "AAA" by S&P, and are validly existing as corporations in good standing under "AAA" by Fitch, the laws of their Class B Notes shall have been rated no less than "Aa1" by ▇▇▇▇▇'▇, "AA" by S&P, and "AA" by Fitch and the Class C Notes shall have been rated no less than "A1" by ▇▇▇▇▇'▇, "A" by S&P and "A+" by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the failure to be so qualified would amount to a material liability or disability to rating of the Company and its subsidiaries, taken as a whole; Offered Notes have been placed under review.
(d) On the Company and each date of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, Ernst & Young shall have furnished to the best knowledge Initial Purchaser an "agreed upon procedures" letter, dated the date of such counseldelivery thereof, any other security interestsin form and substance satisfactory to the Initial Purchaser, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents certain financial and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum.
(xiie) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in Purchaser shall have received an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may relydated the Closing Date, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇ ▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered , in-house counsel to the Initial Purchasers and counsel for Indenture Trustee, substantially in the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.form attached hereto as Exhibit A.
(bf) The Initial Purchasers Purchaser shall have received a legal an opinion from ▇▇▇▇▇▇ of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial PurchasersCompany, dated the Closing Date, (i) with respect to certain legal corporate matters relating substantially in the form attached hereto as Exhibit B and (ii) with respect to this Agreement there being no consents required to transfer the business Loans substantially in the form attached hereto as Exhibit C.
(g) The Initial Purchaser shall have received opinions of Winston & ▇▇▇▇▇▇, counsel to the Company, the Trust Depositor and such other related matters the Trust, (i) with respect to certain corporate, federal tax, securities law and investment company matters, substantially in the forms attached hereto as Exhibit D and (ii) with respect to certain "true sale," "non-consolidation" issues and "perfection issues" substantially in the forms attached hereto as Exhibit E.
(h) The Initial Purchasers may reasonably require. In rendering such opinionPurchaser shall have received opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received Finger, counsel to the Owner Trustee and may rely upon such certificates the Trust, (i) substantially in the forms attached hereto as Exhibit F, (ii) with respect to certain "trust issues" substantially in the form attached hereto as Exhibit G and other documents and information (iii) with respect to certain "perfection issues" substantially in the forms attached hereto as it may reasonably request to pass upon such matters.Exhibit H.
(ci) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP the Indenture Trustee a letter certificate signed by one or letters datedmore duly authorized officers of the Indenture Trustee, respectively, the date hereof and dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchaserscustomary form.
(dj) The Initial Purchaser shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form.
(k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer Purchaser and its Chief Financial Officer counsel such further information, certificates and documents as the Initial Purchaser and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers Purchaser and its counsel.
(l) All documents incident hereto and to the effect that:
(i) Transaction Documents shall be reasonably satisfactory in form and substance to the representations Initial Purchaser and warranties its counsel, and the Initial Purchaser and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the Company conditions specified in this Agreement are true and correct as if made on Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the Closing Date; opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Company has performed Initial Purchaser, this Agreement and all covenants and agreements and satisfied all conditions on its part to of the Initial Purchaser's obligations hereunder may be performed or satisfied canceled by the Initial Purchaser at or prior to delivery of and payment for the Closing Date; and
(ii) subsequent Purchased Notes. Notice of such cancellation shall be given to the respective dates as of which information is given Company in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancewriting, or from any labor dispute by telephone or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change facsimile confirmed in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)writing.
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (American Capital Strategies LTD)
Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Notes shall, Securities shall be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy of the representations rep- resentations and warranties of made herein on the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements part of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements obligations to be performed hereunder prior to the Closing Date, and to the following additional conditions:
(a) On a. The Company shall have furnished to the Closing DateInitial Purchaser the opinion of _________________, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for Counsel of the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been is a corporation duly organized and are validly existing as corporations and in good standing under the laws of their respective jurisdictions of incorporation Missouri and are has due corporate power and authority to own its properties and conduct its business as described in the Offering Memorandum Prospectus, and is duly qualified to transact business as foreign corporations and conduct in __________ the businesses in which it is engaged in those States, which are the only States in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure which it is required to be so qualified would amount to a material liability or disability to qualified;
(ii) the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have has full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and execute the Indenture and to carry out all issue the terms Securities thereunder, and provisions hereof the Indenture has been duly authorized, executed and thereof and of the Notes to be carried out delivered by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially and constitutes a valid and legally binding instrument by the Company free and clear of any perfected security interests or, to enforceable against the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsCompany in accordance with its terms;
(iii) the statements set forth under Securities and the heading “Description of Notes” in Indenture have been duly authorized, executed and issued by the Final MemorandumCompany and, insofar as such statements purport to summarize certain provisions assuming due authentication thereof by the Trustee and upon payment for and delivery of the Notes Securities in accordance with the terms of this Agreement, they will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution Company has full power and delivery of authority to execute this Agreement have been duly authorized by all necessary corporate action of the Company and the this Agreement has been duly authorized, executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee)Indenture, the Indenture will be a legalSecurities and this Agreement, valid and binding agreement the fulfillment of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on thereof and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized hereof by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default underunder any provision of, the Company's articles of incorporation or by-laws or any indenture, mortgage, deed of trust, lease trust or other material agreement or instrument, known to of which such counselcounsel has knowledge, to which the Company or any of its significant subsidiaries is now a party or by which or, to the Company or best of such counsel's knowledge, any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority agency or any arbitrator known to such counsel and applicable to body having jurisdiction over the Company or any of its significant subsidiariesactivities or properties;
(xvi) the provisions of the Securities and the Indenture conform in all material respects as to legal matters to the statements concerning them contained in the Offering Memorandum under "______________" and "________________________________________";
(vii) the franchises, permits and licenses under which the Company operates in the States of Missouri, ________ and _____are adequate to permit the Company to engage in the businesses which it presently conducts in those States and do not contain any unduly burdensome provisions; in those municipalities where the Company operates without franchises or where expired franchises have not been renewed, the lack of such franchises does not materially affect the Company's operations in such municipalities and no actions or proceedings are pending or, to such counsel's knowledge, threatened by such municipalities which would materially affect the Company's operations;
(viii) it is not an “investment company” andnecessary in connection with the offer, after giving effect sale and delivery of the Securities to you and (assuming such offer, sale and delivery are made in compliance with the provisions of the Purchase Agreement and in the manner contemplated by the Offering Memorandum) to each subsequent purchaser to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of the Notes and the application of the proceeds therefrom, will not be an “investment company”1939, as such term is defined in the 1940 Actamended; and
(xiix) such counsel does not know of any legal or governmental proceedings pending or threatened to which each document filed by the Company or any of its subsidiaries is a party or to which with the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus Securities and Exchange Commission ("Commission") pursuant to the Act that are not described Exchange Act, and incorporated by reference in the Final Offering Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant (except as to the Act that are financial statements and schedules and other financial and statistical data contained therein, as to which they need not described or incorporated in express any belief), at the Final Memorandum.
(xii) commencing time it was filed with the Company’s taxable year ended December 31Commission, 1998, the Company was organized and has operated complied as to form in conformity all material respects with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, Exchange Act and the Company’s present applicable instructions, rules and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act regulations of the Notes is required Commission thereunder. Such counsel's opinion set forth in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, paragraphs (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) above may be subject to the due qualifications that the enforceability of the Company's obligations under the Indenture and the Securities may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditor's rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing. Such opinion shall also state that such counsel has no knowledge of any litigation, pending or threatened, which challenges the validity of the Securities, the Indenture, or this Agreement, or which seeks to enjoin the performance of the Company's obligations thereunder or which might have a material adverse effect on the business, properties or financial condition of the Company except as disclosed in or contemplated by the Initial Purchasers of the agreements set forth in Section 8 hereofOffering Memorandum. In rendering any such opinion, such counsel may rely, rely as to factual matters upon certificates or written statements from others or other appropriate representatives of factthe Company or upon certificates of public officials. In such opinion, such counsel may state that while such counsel has examined the Offering Memorandum, such counsel necessarily assumes the correctness and completeness of the statements made and information included therein and takes no responsibility therefor, except insofar as such statements relate to such counsel and as set forth in paragraph (vii) above. Such counsel's opinion may further state that it is addressed to the Initial Purchasers and is rendered solely for their benefit and may not be relied upon in any manner by any other person (other than _______________________ to the extent such counsel deems proper, on certificates of responsible officers stated in its opinion to the Initial Purchasers as of the Company and public officials andClosing Date) without such counsel's prior written consent.
b. The Initial Purchasers shall have received from ____________, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the such opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasersopinions, dated the Closing Date, with respect to certain legal matters relating to this Agreement the issuance and such sale of the Securities, the Indenture, the Offering Memorandum (together with any supplement thereto) and other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and the Company shall have received and may rely upon furnished to such certificates and other counsel such documents and information as it may reasonably they request for the purpose of enabling them to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) c. The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its the Company, signed by the Chairman of the BoardBoard or the President and the principal financial or accounting officer of the Company, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to dated the Initial Purchasers Closing Date, to the effect that the signers of such certificate have carefully examined the Offering Memorandum, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made in all material respects on and as of the Closing Date; Date with the same effect as if made on the Closing Date and the Company has performed complied with all covenants and the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent since the date of the most recent financial statements included in the Offering Memorandum (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any supplement thereto).
d. At the Closing Date, ________________, independent accountants shall have furnished to the respective Initial Purchasers a letter or letters, dated as of the Closing Date, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants' " comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Offering Memorandum.
e. Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum Offering Memorandum, there shall not have been (exclusive i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 8 or (ii) any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancechange, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in or affecting the condition (financial business or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations properties of the Company the effect of which is, in the judgment of the Initial Purchasers, so material and adverse as to make it impractical or any inadvisable to proceed with the offering or delivery of its subsidiaries, taken the Securities as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum.
(e) Subsequent to the execution and delivery of this Agreement and prior f. Prior to the Closing Date, there the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request. If any of the conditions specified in this Section 8 shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to , this Agreement and all obligations of the Initial Purchasers such conformed copies hereunder may be canceled at, or at any time prior to, the Closing Date by the Initial Purchasers. Notice of such opinions, certificates, letters, and documents cancellation shall be given to the Company in such quantities as the Initial Purchasers shall reasonably requestwriting or by telephone or electronic transmittal confirmed in writing.
Appears in 1 contract
Sources: Purchase Agreement (Ameren Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the The Initial Purchasers shall not have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for discovered and disclosed to the Company, dated Company on or prior to the Closing Date, to Date that the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or the date of such opinion, included any amendment or includes supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material fact or omitted or omits to state any fact which, in the opinion of such counsel, is material fact and is required to be stated therein or is necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading.
(iib) All corporate proceedings and other legal matters incident to the Company authorization, form and each validity of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under this Agreement, the Exchange Act) have been duly organized Unit Agreement, the Indenture, the Warrant Agreement, the Registration Rights Agreement, the Escrow Agreement, the Offering Memorandum or any amendment or supplement thereto, and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that legal matters relating to this Agreement, the failure to be so qualified would amount to a material liability or disability to Unit Agreement, the Company and its subsidiariesIndenture, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Warrant Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiariesEscrow Agreement, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; transactions contemplated hereby and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings thereby shall be reasonably satisfactory in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon the opinion of such matters.
(c) ▇▇▇▇▇▇▇ LLP. An opinion of , ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request furnished to pass upon such matters.
(c) The the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters datedits written opinion, respectivelyas U.S. counsel to the Company, addressed to the date hereof Initial Purchasers and dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the representations and warranties laws of the Company State of Delaware, is duly qualified to do business and is in this Agreement are true good standing as a foreign corporation in each U.S. jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, and correct as if made on has all power and as of authority necessary to own or hold its properties and conduct the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; andbusinesses in which it is engaged;
(ii) subsequent The Company has an authorized capitalization as set forth in the Offering Memorandum and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable and conform to the respective dates as of which information is given description thereof contained in the Final Memorandum Offering Memorandum;
(exclusive iii) To the best of any amendment such counsel's knowledge there are no legal or supplement thereto), neither governmental proceedings pending to which the Company nor 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 which, if determined adversely to the Company or any of its subsidiaries, might have a material adverse effect on the financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(iv) The Company has sustained full right, power and authority to execute and deliver each of the Operative Documents and to perform its obligations thereunder; and all corporate action required to be taken for the due and proper authorization, execution and delivery of each of the Operative Documents and the consummation of the transactions contemplated thereby has been duly and validly taken;
(v) Each of the Operative Documents is in proper legal form for the enforcement thereof against the Company without further action on the part of the Initial Purchasers, the holders of the Securities, the Unit Agent, the Trustee or the Warrant Agent;
(vi) This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Initial Purchasers, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing, and except, with respect to the rights of indemnification and contribution thereunder, where enforcement thereof may be limited by public policy;
(vii) The Unit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery of the Unit Agreement by the Unit Agent, the Warrant Agent and the Trustee, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing;
(viii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery of the Indenture by the Trustee, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing;
(ix) The Indenture conforms in all material respects with the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture eligible to be qualified thereunder;
(x) The Warrant Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery of the Warrant Agreement by the Warrant Agent, constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing;
(xi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery of the Registration Rights Agreement by the Initial Purchasers, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing, and except, with respect to the rights of indemnification and contribution thereunder, where enforcement thereof may be limited by public policy;
(xii) The Escrow Agreement has been duly authorized, executed and delivered by the Company and, assuming due execution and delivery of the Escrow Agreement by the Escrow Agent and the Trustee, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing;
(xiii) The certificates used to evidence the Units, the Notes and the Warrants are in due and proper form and comply with all applicable statutory requirements of U.S. federal, Delaware and New York law;
(xiv) The Units have been duly authorized, executed and delivered by the Company and, assuming due authentication thereof by the Unit Agent, the Warrant Agent and the Trustee, upon payment and delivery in accordance with this Agreement and the Unit Agreement, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Unit Agreement, the Indenture and the Warrant Agreement and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing;
(xv) The Notes have been duly authorized, executed and delivered by the Company and, assuming due authentication thereof by the Trustee, upon payment and delivery in accordance with this Agreement and the Indenture, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent, conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing;
(xvi) The Warrants have been duly authorized, executed and delivered by the Company and, assuming due execution thereof by the Warrant Agent in accordance with the provisions of the Warrant Agreement, upon payment and delivery in accordance with this Agreement and the Warrant Agreement, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company, entitled to the benefits of the Warrant Agreement and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing;
(xvii) The Warrant Shares issuable upon exercise of the Warrants have been duly authorized and, when issued in accordance with the terms and conditions contained in the Warrant Agreement upon exercise of the Warrants, will be validly issued in accordance with the laws of the State of Delaware and the provisions of the Certificate of Incorporation and By-laws of the Company and will be fully paid and nonassessable and holders of such Warrant Shares will have no other liability for any debt or other obligation of the Company towards third parties in their capacity as holders of such Warrant Shares; such Warrant Shares, when issued, will not be subject to any preemptive or similar rights and will be free and clear of all liens, encumbrances, equities and claims or restrictions on transferability;
(xviii) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Common Stock or pursuant to the Company's Certificate of Incorporation or By-Laws or any agreement or other instrument known to such counsel;
(xix) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities to be registered pursuant to the Registration Rights Agreement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act.
(xx) The execution, delivery and performance of the Operative Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby, do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any material loss or interference with their respective businesses or properties from fireindenture, floodmortgage, hurricanedeed of trust, accident loan agreement or other calamity, whether material agreement or not covered by insurance, or from any labor dispute instrument to which the Company or any legal of its subsidiaries is subject, nor will such actions result in any violation of (A) the provisions of the Certificate of Incorporation or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management By-laws or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations equivalent constitutive documents of the Company or any of its subsidiaries, taken (B) any existing applicable law, rule or regulation of any court or governmental agency or body of the United States or the State of New York or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law (other than state securities or Blue Sky laws as a wholeto which we have not been requested to express any opinion) or (C) any order, except in each case as described in known to such counsel, of any government, governmental instrumentality or court of the United States or the State of New York having jurisdiction over the Company or any of its properties or assets or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law;
(xxi) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body of the United States or the State of New York or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law is required for the consummation of the transactions contemplated by the Final Memorandum (exclusive of any amendment Operative Documents in connection with the issuance or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction sale of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed Units by the Company and the deposit by the Company of the Pledged Securities in the Escrow Account (assuming compliance with the terms of the Operative Documents by the parties thereto), except, with respect to the transactions contemplated by the Registration Rights Agreement, as may be required under the Securities Act, the Trust Indenture Act and the rules and regulations of the Commission thereunder, and otherwise except as may be required by state or foreign securities or "Blue Sky" laws (as to which such agreement shall be in full force and effect at all times from and after the Closing Date.counsel expresses no opinion);
(hxxii) On or before The descriptions in the Closing DateOffering Memorandum of statutes, the Initial Purchasers legal and counsel for the Initial Purchasers shall have received such further certificates, governmental proceedings and contracts and other documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory accurate in all material respects to the Initial Purchasers extent the foregoing concern the federal laws of the United States, the laws of the State of New York and counsel for the Initial Purchasers. Delaware General Corporation Law; the statements set forth in the Offering Memorandum under the captions "Description of the Units," "Description of the Notes" and "Description of the Warrants" insofar as such statements purport to constitute a summary of the terms of the Unit Agreement, the Indenture, the Warrant Agreement, the Registration Rights Agreement and the Escrow Agreement fairly summarize such terms, agreements and other documents in all material respects; and the statements set forth in the Offering Memorandum under the caption "Certain United States Federal Income Tax Consequences" insofar as they purport to constitute summaries of matters of U.S. federal income tax law and legal conclusions with respect thereto constitute accurate summaries of the matters described therein all material respects;
(xxiii) The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.i
Appears in 1 contract
Sources: Purchase Agreement (Cybernet Internet Services International Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, Purchaser hereunder shall be subject, in the Initial Purchasers’ sole discretion, subject to the continuing accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, to as the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to case may be; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and agreements obligations hereunder and to the following additional further conditions:
(a) On The Initial Purchaser shall not have advised the Closing DateCompany that the Offering Circular, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLPor any supplement or amendment thereto, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any contains an untrue statement of a material fact or omitted which is material, or omits to state any a fact which is material fact and is required to be stated therein or is necessary in order to make the statements thereinstatements, in the light of the circumstances under which they were made, not misleading. No order suspending the sale of the Securities in any jurisdiction shall have been issued on either the Closing Date or the relevant Option Closing Date, if any, and no proceedings for that purpose shall have been instituted or shall be contemplated.
(iib) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified On or prior to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ such opinion or opinions with respect to the organization of the Company, the validity of the Debentures, the Underlying Stock, the Offering Circular and other related matters as the Initial Purchaser may request and ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ shall have received such papers and information as they request to enable it to pass upon such matters.
(c) At Closing Date, the Initial Purchaser shall have received the favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial PurchasersCompany, dated the Closing Date, with respect addressed to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may Purchaser and in form and substance reasonably require. In rendering such opinion, satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request , with respect to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, matters customarily covered in form and substance satisfactory to opinions of counsel for the Initial Purchasersin like transactions.
(d) The Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ shall state in the opinion letter contemplated by Section 6(c) that such counsel has participated in conferences with officers and other representatives of each of the Company and the Subsidiaries and representatives of the independent public accountants for the Company and the Subsidiaries and the Initial Purchaser, at which conferences the contents of the Offering Circular and related matters were discussed, and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Offering Circular and have made no independent check or verification thereof, on the basis of the foregoing, no facts have come to the attention of such counsel which has lead them to believe that the Offering Circular, as of its date 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, except that such counsel express no opinion or belief with respect to the financial statements and related notes, the pro forma financial information and other financial, statistical or accounting data included the Offering Circular or excluded therefrom);
(e) On or prior to the Closing Date, ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ shall have been furnished such documents, certificates and opinions as they may reasonably require for the purpose of enabling them to review or caused pass upon the matters referred to be furnished in subsection (c) of this Section 6 or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions of the Company herein contained.
(f) Prior to the Initial Purchasers Closing Date: (i) there shall have been no material adverse change involving a prospective change in the condition, financial or otherwise, prospects, stockholders' equity or the business activities of the Company and the Subsidiaries taken as a whole, whether or not in the ordinary course of business, from the latest dates as of which such condition is set forth in the Offering Circular; (ii) there shall have been no transaction, not in the ordinary course of business, entered into by the Company or any of the Subsidiaries, from the latest date as of which the financial condition of the Company and the Subsidiaries is set forth in the Offering Circular which is materially adverse to the Company and the Subsidiaries taken as a whole; (iii) neither the Company nor any of the Subsidiaries shall be in default under any provision of any instrument relating to any material outstanding indebtedness; (iv) no material amount of the assets of the Company or any of the Subsidiaries shall have been pledged or mortgaged, except as set forth in the Offering Circular; (v) no action, suit or proceeding, at law or in equity, shall have been pending or. to the knowledge of the Company, threatened against the Company or any of the Subsidiaries, or affecting any of their respective properties or businesses, before or by any court or federal, state or foreign commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may have a Material Adverse Effect, except as set forth in the Offering Circular; and (vi) no stop order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated, threatened or contemplated by the Commission or any state regulatory authority.
(g) At the Closing Date, the Initial Purchaser shall have received a certificate of its Chairman the Company signed by the principal executive officer and by the chief financial or chief accounting officer of the BoardCompany, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to in their capacities as such, dated the Initial Purchasers Closing Date, to the effect that each of such persons has carefully examined the Offering Circular, this Agreement and the Indenture, and that:
(i) the representations and warranties of the Company in this Agreement, the Indenture and the Registration Rights Agreement are true and correct correct, as if made on and as of the Closing Date or such Option Closing Date; , as the case may be, and the Company has performed complied with all agreements and covenants and agreements and satisfied all conditions contained in this Agreement, the Indenture and the Registration Rights Agreement on its part to be performed or satisfied at or prior to the Closing Date;
ii) no stop order suspending the qualification or exemption from qualification of the Debentures shall have been issued and no proceedings for that purpose shall have been commenced or, to the knowledge of the Company, be contemplated;
iii) since the date of the most recent financial statements included in the Offering Circular, there has been no material adverse change in the condition, financial or otherwise business, prospects or results of operation of the Company and the Subsidiaries, taken as a whole, except as set forth in the Offering Circular;
iv) none of the Offering Circular or any such amendment or supplement includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(iiv) subsequent to the respective dates as of which information is given in the Final Memorandum Offering Circular: (exclusive of any amendment or supplement thereto), a) neither the Company nor any of the Subsidiaries has incurred up to and including the Closing Date or the Option Closing Date, as the case may be, other than in the ordinary course of its subsidiaries business, any material liabilities or obligations, direct or contingent, except as disclosed in the Offering Circular; (b) neither the Company nor any of the Subsidiaries has paid or declared any dividends or other distributions on its capital stock; (c) neither the Company nor any of the Subsidiaries has entered into any material transactions not in the ordinary course of business, except as disclosed in the Offering Circular; (d) there has not been any material change in the capital stock (other than pursuant to the Company's 1981 Incentive Stock Option Plan, 1981 Non-Qualified Stock Option Plan or 1991 Stock Option Plan or upon conversion of the 1998 Debentures); (e) neither the Company nor any of the Subsidiaries has sustained any material loss or interference with their respective businesses damage to its property or properties from fire, flood, hurricane, accident or other calamityassets, whether or not covered by insuranceinsured; and (f) there is no litigation which is pending or to the best of the Company's knowledge threatened against the Company, or from any labor dispute of the Subsidiaries or any legal affiliated party of any of the foregoing which would have a Material Adverse Effect and which is required to be set forth in an amended or governmental proceeding, and there supplemented Offering Circular which has not been any materially adverse change set forth.
(includingh) On or before the date hereof the Initial Purchaser shall have received a letter, without limitationdated such date, a change addressed to the Initial Purchaser in management or control)form and substance satisfactory in all respects to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, or development involving a prospective materially adverse change, in from KPMG Peat Marwick LLP:
i) confirming that they are independent certified public accountants with respect to the condition (Company within the meaning of the Securities Act and the Exchange Act and the applicable Rules and Regulations;
ii) stating that it is their opinion that the consolidated financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations statements and supporting schedules of the Company and the Subsidiaries included in the Offering Circular or any incorporated by reference therein comply as to form in all material respects with the applicable accounting requirements of its subsidiariesthe Securities Act; and
iii) stating that they have compared specific dollar amounts, taken as a wholenumbers of shares, except percentages of revenues and earnings, statements and/or other financial information pertaining to the Company and the Subsidiaries set forth in the Offering Circular in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and/or the Subsidiaries and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures need not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement.
(i) At the Closing Date and each Option Closing Date, if any, the Initial Purchaser shall have received from KPMG Peat Marwick LLP a letter, dated as described of the Closing Date or such Option Closing Date, as the case may be, to the effect that they reaffirm that statements made in the letter furnished pursuant to subsection (h) of this Section 6, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Date or contemplated such Option Closing Date, as the case may be, to the further effect that they have carried out procedures as specified in clause (iii) of subsection (h) of this Section 6 with respect to certain amounts, percentages and financial information as specified by the Final Memorandum Initial Purchaser and deemed to be a part of the Offering Circular and have found such amounts, percentages and financial information to be in agreement with the records specified in such clause (exclusive of any amendment or supplement theretoiii).
(ej) On each of the Closing Date and each Option Closing Date, if any, there shall have been duly tendered to the Initial Purchaser the appropriate principal amount of Debentures.
(k) The Securities shall have been approved by the National Association of Securities Dealers, Inc. for trading in the PORTAL market.
(l) Trading in the Common Stock shall not have been suspended by the American Stock Exchange at any time after September 1, 1995.
(m) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingof the following: (i) trading in securities generally on the New York Stock Exchange, nor the American Stock Exchange or the over-the-counter market shall any notice have been given suspended or limited, or minimum prices shall have been established on either of such exchanges or such market by the Commission, by such exchange or by any intended other regulatory body or potential downgrading governmental authority having jurisdiction, or of any review for a possible change that does not indicate the direction trading in securities of the possible changeCompany on any exchange or in the over-the- counter market shall have been suspended or (ii) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war or such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the rating accorded any judgment of the Company’s securities by any “nationally recognized statistical rating organization”Initial Purchaser, as such term is defined for purposes impracticable or inadvisable to proceed with the offering or the delivery of Rule 436(g)(2) under the ActDebentures on the terms and in the manner contemplated in the Offering Circular.
(fn) The Company and the Initial Purchaser shall have executed and delivered the Registration Rights Agreement on the date of this Agreement.
(o) The Indenture shall have been duly executed and delivered by all the parties thereto.
(g) On Company and the Closing Date, Trustee and the Initial Purchasers Debentures shall have received the Registration Rights Agreement been duly executed and delivered by the Company and such agreement shall be in full force and effect at all times from and after duly authenticated by the Closing DateTrustee.
(hp) On If any event shall have occurred that requires the Company under Section 4(c) hereof to prepare an amendment or before supplement to the Closing DateOffering Circular, such amendment or supplement shall have been prepared, the Initial Purchasers Purchaser shall have been given a reasonable opportunity to comment thereon, and counsel for copies thereof delivered to the Initial Purchasers Purchaser.
(q) There shall not have received such further certificatesoccurred any invalidation of Rule 144A under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation under the Securities Act or the Exchange Securities Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the judgment of the Initial Purchaser would materially impair the ability of the Initial Purchaser to purchase, documents hold or other information effect resales of the Debentures as they may have reasonably requested from the Companycontemplated hereby. All opinions, certificatesletters, letters evidence and documents delivered pursuant to certificates mentioned above or elsewhere in this Agreement will comply shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial PurchasersPurchaser. The Company shall furnish If any condition to the Initial Purchasers such conformed copies of such opinionsPurchaser's obligations hereunder to be fulfilled prior to or at the Closing Date or the relevant Option Closing Date, certificates, letters, and documents in such quantities as the case may be, is not so fulfilled, the Initial Purchasers shall reasonably requestPurchaser may terminate this Agreement or, if the Initial Purchaser so elects, it may waive any such conditions which have not been fulfilled or extend the time for their fulfillment.
Appears in 1 contract
Sources: Purchase Agreement (Diagnostic Retrieval Systems Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Purchased Notes shall, on the Closing Date will be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each the Closing Date, as if made on in all material respects, of the representations and as warranties of each Closing Datethe Issuer herein, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofperformance, to the performance in all material respects, by the Company Issuer of its covenants and agreements obligations hereunder and to the following additional conditionsconditions precedent:
(a) On The Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the documents required to be delivered pursuant to the Indenture in respect of the Collateral Obligations shall have been delivered to the Custodian pursuant to and as required by the Transaction Documents.
(b) The Initial Purchaser shall have received a certificate, dated as of the Closing Date, of a manager of the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLPCollateral Manager to the effect that such officer has carefully examined the Final Memorandum and that, counsel for to the Companybest of such officer’s knowledge, dated nothing has come to the attention of such officer that would lead such officer to believe that the "CM Offering Circular Information" (as defined in the Final Memorandum), as of the date of the Final Memorandum and as of the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes contains any untrue statement of a material fact or omitted or omits to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iic) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) The Class A-1 Notes shall have been duly organized rated "AAA(sf)" by S&P, the Class A-2 Notes shall have been rated "AAA(sf)" by S&P, the Class B Notes shall have been rated no less than "AA(sf)" by S&P and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where Class C Notes shall have been rated no less than "A(sf)" by S&P, such counsel has ratings shall not have been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandumrescinded, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and no public announcement shall have been made by S&P that any ratings of the Offered Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification placed under the TIAreview.
(vid) the Notes The Initial Purchaser shall have been duly authorized by all necessary corporate action of the Company andreceived an opinion, on and as of dated the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇N▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇P▇▇▇▇▇▇ LLP, counsel for to the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing DateTrustee, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)Purchaser.
(e) Subsequent The Initial Purchaser shall have received legal opinions or letters of Dechert LLP, counsel to the execution Issuer and delivery of this Agreement and prior the Collateral Manager, with respect to certain corporate matters with respect to the Closing DateIssuer and the Collateral Manager and certain federal tax, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changesecurities law and investment company matters, in form and substance satisfactory to the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the ActInitial Purchaser.
(f) [Reserved].
(g) The Indenture Initial Purchaser shall have received opinions of C▇▇▇▇ H▇▇▇ PLC, Delaware counsel to the Issuer, with respect to certain limited liability company matters with respect to the Issuer in form and substance satisfactory to the Initial Purchaser.
(h) The Initial Purchaser shall have received from the Trustee a certificate signed by one or more duly authorized officers of the Trustee, dated the Closing Date, in customary form.
(i) The Purchaser shall have purchased or otherwise acquired the Subordinated Notes in accordance with the terms of the Subordinated Note Purchase Agreements.
(j) The Indenture, the Collateral Management Agreement and all other documents incident hereto and to the other Transaction Documents shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, thereto in form and substance reasonably satisfactory to the Initial Purchasers Purchaser and its counsel; an executed version of each Transaction Document shall have received been delivered to the Registration Rights Agreement executed by the Company Initial Purchaser; and such agreement each Transaction Document shall be in full force and effect at all times from and after the Closing Dateeffect.
(hk) On The Closing Date occurs on or before prior to August 26, 2020. If any of the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers conditions specified in this Section 7 shall not have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers Purchaser, unless in any case waived by the Initial Purchaser in its sole discretion, this Agreement and counsel all of the Initial Purchaser’s obligations hereunder may be canceled by the Initial Purchaser at or prior to delivery of and payment for the Initial PurchasersPurchased Notes. The Company Notice of such cancellation shall furnish be given to the Initial Purchasers such conformed copies of such opinionsCollateral Manager in writing, certificates, letters, and documents or by telephone or facsimile confirmed in such quantities as the Initial Purchasers shall reasonably requestwriting.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, shall be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Squire, Sand▇▇▇ & ▇emp▇▇▇ ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchaser, substantially to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and its Subsidiaries (including each of its “significant subsidiaries” (as defined in Rule 1.02(wthe Guarantors) of Regulation S-X under the Exchange Act) have been is duly organized and are incorporated, validly existing as corporations and in good standing under the laws of their respective jurisdictions the jurisdiction of its incorporation and are has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Memorandum.
(ii) Each of the Company and its Subsidiaries (including each of the Guarantors) is duly qualified to transact business as a foreign corporations corporation and are is in good standing under the laws of all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such counsel has been advised that qualification, except where the failure to be so qualified would amount to not, individually or in the aggregate, have a material liability or disability to the Company and its subsidiaries, taken Material Adverse Effect.
(iii) Except as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described disclosed in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each the Subsidiaries of the Company are owned, directly or indirectly, by the Company’s significant subsidiaries, except free and clear of all Encumbrances.
(iv) Except as otherwise set forth in the Final Memorandum, (A) no options, warrants or other rights to purchase from the Company any Equity Interests in the Company are owned beneficially outstanding, (B) no agreements, contracts, arrangements or other obligations of the Company to issue, or other rights granted by the Company free and clear of any perfected security interests or, to cause the best knowledge of such counselCompany to convert, any other security interestsobligation into, liensor exchange any securities for, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
any Equity Interests in the Company are outstanding and (iiiC) the statements set forth Company is not obligated to have any of its securities registered under a registration statement filed by the Company under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for Act with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action any of the Company and the Agreement has been duly executed and delivered by the Company;Notes.
(v) the execution The Company has all requisite corporate power and delivery of the Indenture have been duly authorized by the Company andauthority to execute, when duly executed deliver and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.perform its
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the . The Registration Rights Agreement has been duly authorized by the Company andand validly authorized, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be constitutes a legal, valid and legally binding agreement obligation of the Company, enforceable against the Company in accordance with its terms terms, except that the enforcement thereof may be subject to (subjecti) bankruptcy, as insolvency (including all laws relating to enforcement of remedies, to applicable bankruptcyfraudulent transfer), reorganization, insolvencyreceivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors' rights generally, (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought and (iii) federal or state securities laws or principles of public policy affecting enforcement of rights to indemnity or contribution.
(vii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and legally binding obligations of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effect (ii) general principles of equity (whether applied by a court of law or equity) and except that the discretion of the court before which any proceeding therefor may be brought and (iii) federal or state securities laws or principles of public policy affecting enforcement of rights to indemnity or contribution thereunder may be limited by federal contribution.
(viii) The statements set forth in the Final Memorandum under the caption "Description of Notes", fairly summarize in all material respects the legal matters and state securities laws and public policy considerations)documents referred to therein.
(ix) The statements in the Final Memorandum, insofar as they are descriptions of contracts, agreements or other legal documents, are accurate in all material respects and present fairly the information required to be shown.
(x) The Indenture, the Notes, the Guarantees (when issued in accordance with the Indenture), and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum.
(xi) Except as set forth in the Final Memorandum, no legal or governmental actions, suits or proceedings are pending or, to the knowledge of such counsel, threatened to which the Company or any of its Subsidiaries is a party or to which the property or assets of the Company or any of its Subsidiaries is subject (i) which, if determined adversely to the Company or such Subsidiary, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Final Memorandum or (ii) which would be required to be disclosed in the Final Memorandum if the Final Memorandum were a prospectus included in a registration statement on Form S-1 filed under the Act.
(xii) Assuming that the New Notes have been duly authorized by all necessary corporate action of the Company,
(xiii) Except as set forth in the Final Memorandum, the execution and delivery by of this Agreement and each of the Company of, Transaction Documents and the performance by consummation of the Company of its obligations undertransactions contemplated hereby and thereby (including, this Agreementwithout limitation, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering issuance and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do Purchaser) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a material breach or violation of or a default under (or an event which with notice or passage of time or both would constitute a material default under) (i) any of the terms and or provisions of, or constitute a default under, of (A) any indenture, mortgage, deed of trust, lease loan agreement, note, or (B) any lease, license, franchise agreement, Permit, certificate, contract or other material agreement or instrument, known to such counsel, instrument to which the Company or any of its significant subsidiaries Subsidiaries is a party or by to which the Company they or any of its significant subsidiaries or any of their respective properties or assets are boundsubject, except, with respect to each of clauses (A) and (B) hereof, for any such conflict, breach, violation, default or event which would not, individually or in the charter documents aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or by-laws bylaws of the Company or any of its significant subsidiariesSubsidiaries, or (iii) any statute or any statute, judgment, decree, order, law, rule or regulation regulation, or any judgment, order or decree of any court court, governmental agency or other governmental authority body or any arbitrator known to such counsel and applicable to the Company or Company, its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company Subsidiaries or any of its subsidiaries is a party their respective properties or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumassets.
(xiixiv) commencing with No consent, approval, authorization or order of any domestic governmental authority is required for the Company’s taxable year ended December 31, 1998, issuance and sale by the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers Purchaser or the other transactions contemplated hereby, except as have previously been obtained and as may be required under applicable state securities or Blue Sky laws.
(xv) Based upon the representations, warranties and agreements of the Company in Sections 1 and 5 of this
(xvi) Neither the consummation of the transactions contemplated by this Agreement or any of the Transaction Documents nor the sale, issuance, execution or delivery of the Notes will violate Section 7 of the Exchange Act or any regulation promulgated thereunder, including, without limitation, Regulation G, T, U or X promulgated by the Board of Governors of the Federal Reserve System. Such counsel shall also state that it has reviewed and participated in discussions concerning the preparation of the Final Memorandum or in connection with the initial resale certain officers and employees of the Notes by Company, with its counsel and its auditors, and with representatives of the Initial Purchasers Purchaser and their counsel. The limitations inherent in accordance with Section 8 the independent verification of factual matters and in the role of outside counsel are such, however, that such counsel will not assume any responsibility for the accuracy, completeness or fairness of any of the statements made in the Final Memorandum, except as set forth in subparagraph (viii), (ix) and (x) of this AgreementSection 7(a). Such counsel shall advise the Initial Purchaser that, and prior subject to the commencement limitations set forth above, on the basis of the Exchange Offer (as defined information such counsel gained in the Registration Rights Agreement) or course of performing the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement)services referred to above, the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) no facts came to such counsel's attention which gave such counsel reason to believe that the purchasers who buy such Notes Final Memorandum (other than the financial statements and related notes thereto and the other financial, statistical, and other accounting data, as to which counsel need express no opinion) of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale light of the Notes is made in an offshore transaction as defined in Regulation Scircumstances under which they were made, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereofnot misleading. In rendering any such opinion, such counsel may rely, as (i) rely with respect to matters of factfact upon the representations and warranties of the Company and its Subsidiaries set forth herein, to the extent such counsel deems proper, on upon certificates of responsible officers of the Company and its Subsidiaries and upon information obtained from public officials andofficials, (ii) assume that all documents submitted to such counsel as originals are authentic, that all copies submitted to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, such counsel conform to the extent satisfactory in form originals thereof, and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from ▇▇opinion(s) in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser of local counsel to the Company and its Subsidiaries as to certain regulatory matters with respect to the Company and its Subsidiaries.
(c) On the Closing Date, the Initial Purchaser shall have received an opinion, in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of Ande▇▇▇▇ ▇▇▇▇▇▇ l & ▇▇▇▇▇▇▇ LLPOlick P.C., counsel for the Initial Purchasers, dated the Closing DatePurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇Ande▇▇▇▇ ▇▇▇▇▇▇ l & ▇▇▇▇▇▇▇ LLP Olick P.C. shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(cd) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP the Independent Accountants a comfort letter or letters dated, respectively, dated the date hereof and the Closing Datehereof, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser and its counsel.
(de) The representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except for the representations and warranties which were true and correct as of a certain specified date which shall continue to be true and correct as of such date). The statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date. The Company shall have furnished or caused complied in all material respects with all agreements and satisfied all conditions to be furnished performed or satisfied hereunder at or prior to the Initial Purchasers at Closing Date. Except as described in the Final Memorandum
(f) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing a certificate Date.
(g) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in such Final Memorandum or contemplated hereby or thereby, neither the Company nor any of its Subsidiaries shall have incurred any liabilities or obligations, direct or contingent not in the ordinary course of business that are material to the Company and its Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other) or results of operations or prospects of the Company, taken as a whole, and there shall not have been any adverse change in the capital stock or long-term indebtedness of the Company or any of its Subsidiaries that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole.
(h) Subsequent to the date of the most recent financial statements in the Final Memorandum and except as stated therein (exclusive of any amendment or supplement thereto after the date hereof), the conduct of the business and operations of the Company shall not have been interfered with by strike, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and the properties of the Company shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, individually or in the aggregate, have a Material Adverse Effect.
(i) The Initial Purchaser shall have received certificates of the Company, dated the Closing Date, signed on behalf of the Company by the Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers their Treasurer, to the effect that:
(i) the representations and warranties of the Company and its Subsidiaries contained in this Agreement are true and correct in all material respects as if made on of the date hereof and as of the Closing Date; Date (except for the representations and warranties which were true and correct as of a certain specified date which shall continue to be true and correct as of such date), and the Company has and its Subsidiaries have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to at the respective dates as Closing Date, since the date hereof or since the date of which information is given the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement theretothereto after the date hereof), neither the Company no event or events have occurred, no information has become known nor does any of its subsidiaries has sustained any material loss condition exist that, individually or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition aggregate, would have a Material Adverse Effect;
(financial iii) since the date hereof or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations since the date of the Company or any of its subsidiaries, taken as a whole, except most recent financial statements in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement theretothereto after the date hereof), other than as described in the Final Memorandum or contemplated hereby, neither the Company nor any of its Subsidiaries has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and its Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any of its Subsidiaries that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole; and
(iv) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(gj) On the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(hk) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers Purchaser shall have received such further certificatesForbearance Agreements, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters each in form and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are substance satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Purch
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇▇, Levy, ▇▇▇▇▇ Chance US LLP& ▇▇▇▇▇▇▇, counsel for the CompanyCompany and the Guarantors, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been Subsidiaries is duly organized and are incorporated, validly existing as corporations and in good standing under the laws of their its respective jurisdictions jurisdiction of incorporation and are has all requisite corporate (or partnership or limited liability) power and authority to own its properties and to conduct its business as described in the Final Memorandum. Each of the Company and the Subsidiaries is duly qualified to transact do business as a foreign corporations and are corporation in good standing under the laws of in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such counsel has been advised that qualification, except where the failure to be so qualified would amount to not, individually or in the aggregate, have a material liability or disability to Material Adverse Effect.
(ii) The Company has the Company authorized, issued and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described outstanding capitalization set forth in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each the Company and the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; all of the Company’s significant subsidiariesoutstanding shares of capital stock of the Subsidiaries are owned, directly or indirectly, by the Company (except for Hanger Europe, N.V.), free and clear of all perfected security interests and, to the knowledge of such counsel, free and clear of all other liens, encumbrances, equities and claims or restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of certain jurisdictions) or voting.
(iii) Except as otherwise set forth in the Final MemorandumMemorandum (A) no options, warrants or other rights to purchase from the Company or any Subsidiary shares of capital stock or ownership interests in the Company or any Subsidiary are owned beneficially outstanding, (B) no agreements or other obligations to issue, or other rights to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company or any Subsidiary are outstanding and (C) no holder of securities of the Company or any Subsidiary is entitled to have such securities registered under a registration statement filed by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;Registration Rights Agreement.
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the The Company and each Guarantor has all requisite corporate (or partnership or limited liability company) power and authority to execute, deliver and perform each of its obligations under the Agreement Indenture, the Notes, the Exchange Notes and the Private Exchange Notes; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly validly authorized by the Company and each Guarantor and, when duly executed and delivered by the Company and each Guarantor (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the Indenture will be a legal, valid and legally binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(v) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with its terms their terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effect). The Indenture meets and (ii) general principles of equity and the requirements for qualification under discretion of the TIAcourt before which any proceeding therefor may be brought.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effect)and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(viiivii) the The Company and each Guarantor has all requisite corporate (or partnership or limited liability company) power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the Company and each Guarantor and, when duly executed and delivered by the Company and each Guarantor (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, constitute the valid and legally binding agreement of the CompanyCompany and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms terms, except that (subject, as A) the enforcement thereof may be subject to enforcement of remedies, to applicable (i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effect and except that (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) an rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; and this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company. This Agreement has been duly executed and delivered by the Company.
(ix) the execution and delivery by the Company ofThe Indenture, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes Guarantees and the Private Exchange NotesRegistration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum.
(x) No legal or governmental proceedings are pending or, to the issuanceknowledge of such counsel, offering and threatened to which any of the Company or the Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary is subject which, if determined adversely to the Company or the Subsidiaries, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and be sold hereunder or the consummation of the other transactions herein contemplated do not described in the Final Memorandum under the caption "The Acquisition and Related Financing Transactions."
(xxi) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws None of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act Company or the TIA Subsidiaries is (i) in connection with violation of its certificate of incorporation or bylaws (or similar organizational document), (ii) to the exchange offer contemplated by the Registration Rights Agreementknowledge such counsel, or (y) conflict with or result in a breach or violation of any of the terms and provisions ofstatute, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, except for any such breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect, or (iii) in breach or default under (nor has any event occurred which, with notice or passage of time or both, would constitute a default under) or in violation of any court of the terms or other governmental authority or provisions of any arbitrator Contract known to such counsel and applicable to (including in any event any of the foregoing which have been filed by the Company with the Commission), except for any such breach, default, violation or its significant subsidiaries;event which would not, individually or in the aggregate, have a Material Adverse Effect.
(xxii) The execution, delivery and performance of this Agreement, the Company is not an “investment company” andIndenture, after giving effect to the Offering Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Notes and to the application Initial Purchasers) will not conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any Contract known to such counsel (including in any event any of the proceeds therefromforegoing which have been filed by the Company with the Commission), will not be an “investment company”except for any such conflict, as such term is defined breach, violation, default or event which would not, individually or in the 1940 Act; and
aggregate, have a Material Adverse Effect, (xiii) such counsel does not know the certificate of any legal incorporation or governmental proceedings pending bylaws (or threatened to which the Company or any of its subsidiaries is a party or to which the property similar organizational document) of the Company or any of the Subsidiaries, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any statute, judgment, decree, order, rule or regulation known to such counsel to be applicable to the Company or any of the Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(xiii) No consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company of the Notes to the Initial Purchasers, the issuance by any Guarantor of its subsidiaries is subject that Guarantee or the consummation by the Company or any Guarantor of the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained.
(xiv) The Company and the Subsidiaries have obtained all Permits necessary to conduct the businesses now or proposed to be conducted by them as described in the Final Memorandum, the lack of which would, individually or in the aggregate, have a Material Adverse Effect; and each of the Company and the Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Permit.
(xv) To the best of such counsel's knowledge, the Company and the Subsidiaries own or possess adequate licenses or other rights to use all patents, trademarks, service marks, trade names, copyrights and know-how necessary to conduct the businesses now or proposed to be operated by them as described in the Final Memorandum, and none of the Company or the Subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any patents, trademarks, service marks, trade names, copyrights or know-how which, if such assertion of infringement or conflict were sustained, would have a Material Adverse Effect.
(xvi) To the knowledge of such counsel, there are no legal or governmental proceedings involving or affecting the Company or the Subsidiaries or any of their respective properties or assets which would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or Memorandum, nor are there any statutes, regulations, material contracts or other documents that which would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xiixvii) commencing with the Company’s taxable year ended December 31, 1998, None of the Company was organized or the Subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and has operated the application of the proceeds from such sale (as described in conformity with the requirements for qualification as a real estate investment trust (“REIT”) Final Memorandum under the Codecaption "Sources and Uses of Funds") will be, and an "investment company" as such term is defined in the Company’s present and proposed method Investment Company Act of operation1940, as represented by the Company, will permit the Company to continue to so qualifyamended.
(xiiixviii) No registration under the Act of the Notes or the Guarantees is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”"QIBS") or accredited investors as defined in Rule 501(a) (1), (2), (3) or (7) promulgated under the Act ("ACCREDITED INVESTORS") or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to .
(xix) Neither the extent such counsel deems proper, on certificates of responsible officers consummation of the Company and public officials andtransactions contemplated by this Agreement nor the sale, as to matters involving the application of laws of any jurisdiction other than the State of New York issuance, execution or the United States or the General Corporation Law delivery of the State Notes will violate Regulation T, U or X of Delawarethe Board of Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, to ▇▇▇▇▇▇▇▇, Levy, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall additionally state that it has participated in conferences with officers and other representatives of the extent satisfactory in form Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchasers and scope to counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(ix)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, 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 contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). The opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ LLP. An opinion of & ▇▇▇▇▇▇▇ LLP described in this Section 7(a) shall be delivered rendered to the Initial Purchasers at the request of the Company and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasersshall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.in
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in on the Initial Purchasers’ sole discretion, Closing Date is subject to the accuracy accuracy, as of the Closing Date, of the representations and warranties of the Company LNR contained herein as of the date hereof herein, and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company LNR of its covenants and agreements obligations hereunder and to the following additional conditions:conditions (any of which may be waived in writing by the Initial Purchaser):
(a) On the Closing Date, Date the Initial Purchasers Purchaser shall have received a legal opinion from the opinions, dated as of the Closing Date and addressed to the Initial Purchaser (and stating that it may be relied upon by counsel to the Initial Purchaser), of Clifford Chance US LLP, counsel for LNR, and Bilzin Sumberg Baena P▇▇▇▇ & ▇xelrod, LLP, special counsel to certain Desi▇▇▇▇▇▇ ▇▇▇▇▇▇iaries an▇ ▇▇▇ Chance US LLP▇and Partnership, in form and substance satisfactory to counsel for the Company, dated the Closing DateInitial Purchaser, to the effect that:
(i) such counsel has no reason to believe that (other than Each of LNR, the financial statements Designated Subsidiaries and other financial information contained thereinthe Land Partnerships is duly organized, validly existing and, as to which such counsel need express no opinion) LNR and the Final MemorandumDesignated Subsidiaries that are corporations, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of organization and, has all requisite corporate or other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum. Each of LNR, the Designated Subsidiaries and the Company Land Partnerships is duly qualified to do business and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification and where LNR has corporate power to enter into this Agreement, informed such counsel the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes failure to be carried out by itso qualified would, individually or in the aggregate, have a Material Adverse Effect.
(ii) LNR has the authorized capital stock as set forth under "Capitalization" in the Memorandum; all of the outstanding shares of Common Stock and Class B Common Stock of LNR and the capital stock of each Designated Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and were not issued and in violation of any preemptive or similar rights; all of the outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, Designated Subsidiaries are owned beneficially by the Company LNR or another Subsidiary, insofar as such counsel is aware, free and clear of any perfected security interests or, all liens (other than those created pursuant to the best knowledge Credit Agreement), encumbrances, equities and claims or restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of certain jurisdictions) or voting; LNR indirectly owns a 50% interest in each Land Partnership; such counselinterest in each Land Partnership has been duly authorized and validly issued and is, any other security interestsinsofar as such counsel is aware, free and clear of all liens, encumbrances, equities or and claims, except for pledges of subsidiary stock under debt instruments;.
(iii) the statements Insofar as such counsel is aware, except as set forth under the heading “Description of Notes” in the Final Memorandum or in a document incorporated by reference into the Memorandum, insofar (A) there are no outstanding options, warrants or other rights to purchase from LNR or any Designated Subsidiary or either Land Partnership shares of capital stock or ownership interests in LNR or any Designated Subsidiary or ownership interests in either Land Partnership, (B) other than LNR's Class B Common Stock or as such statements purport to summarize certain provisions provided in the Registration Rights Agreement or either of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” Other Registration Rights Agreements (as defined in the Final MemorandumRegistration Rights Agreement), insofar there are no outstanding agreements or other obligations of LNR or any Designated Subsidiary to issue, or other rights to cause LNR or any Designated Subsidiary or either Land Partnership to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in LNR or any Designated Subsidiary or ownership interests in either Land Partnership and (C) except as such statements constitute a summary provided in the Registration Rights Agreement or either of the legal mattersOther Registration Rights Agreements, documents no holder of securities of LNR or proceedings referred any Designated Subsidiary (other than the Notes) is entitled to therein, have been reviewed such securities registered under a registration statement filed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;LNR.
(iv) LNR has all requisite corporate power and authority to execute, deliver and perform its obligations under the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of Notes, the Company Exchange Notes, the Private Exchange Notes and the Registration Rights Agreement and to perform its obligations under the Indenture.
(v) The Indenture is in sufficient form for qualification under the Trust Indenture Act; the Indenture has been duly and validly authorized, executed and delivered by the Company;
(v) the execution LNR, and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof of the Indenture by the Trustee), ) constitutes the Indenture will be a legal, valid and legally binding agreement of the CompanyLNR, enforceable against the Company LNR in accordance with its terms terms, except to the extent that the enforcement thereof may be affected by (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta proceeding in equity or at law). The Indenture meets the requirements for qualification under the TIA.
(vi) The Notes are in the form contemplated by the Indenture. The Notes have each been duly authorized by all necessary corporate action of the Company andand validly authorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company LNR and, when paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the TrusteeTrustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the CompanyLNR, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder , and enforceable against LNR in accordance with their terms, except to the extent that the enforcement thereof may be affected by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of securities equity and the discretion of the Company has court before which any right which has not been fully exercised proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;at law).
(vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, LNR and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by LNR, the Company in accordance with the terms of exchange transactions described in, or otherwise contemplated by the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of LNR, entitled to the Companybenefits of the Indenture, and enforceable against LNR in accordance with their terms terms, except to the extent that the enforcement thereof may be affected by (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta proceeding in equity or at law).
(viii) The Registration Rights Agreement has been duly and validly authorized, executed and delivered by LNR, and (assuming due authorization, execution and delivery thereof by the Company Initial Purchaser) constitutes the valid and legally binding agreement of LNR enforceable against LNR in accordance with its terms, except to the extent that (A) the enforcement thereof may be affected by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal or state securities laws or public policy considerations.
(ix) LNR has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the Registration Rights Agreementtransactions contemplated hereby; this Agreement and the Registration Rights consummation by LNR of the transactions contemplated hereby have been duly and validly authorized by LNR. This Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations)LNR.
(ixx) The Indenture, the execution Notes and delivery the Registration Rights Agreement conform as to legal matters in all material respects to the descriptions of them contained or incorporated by reference in the Company ofMemorandum.
(xi) Insofar as such counsel is aware there are (i) no legal or governmental proceedings pending or threatened to which LNR or any Designated Subsidiary or either Land Partnership is a party or to which the property or assets of LNR or any Designated Subsidiary or either Land Partnership is subject which would be required under the Act to be described in a registration statement of LNR under the Act or in a prospectus meeting the requirements of Section 10 of the Act, and are not described in the performance Memorandum, or which seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Memorandum and (ii) no contracts, agreements or other documents to which LNR or any Designated Subsidiary or either Land Partnership is a party which would be required under the Act to be described in a registration statement or prospectus of LNR and are not described in the Memorandum. The descriptions contained or incorporated by reference in the Company Memorandum of its obligations under, this the Credit Agreement, the Registration Rights partnership agreements of each of the Land Partnerships, the separation and distribution agreement relating to the spin-off of LNR and the By-Laws of LNR are accurate in all material respects and fairly summarize the provisions of such agreements and documents which they purport to summarize.
(xii) Insofar as such counsel is aware, neither LNR nor any Designated Subsidiary is in violation of its certificate of incorporation or bylaws or other comparable organizational documents and neither Land Partnership is in violation of the partnership agreement under which it was formed.
(xiii) The execution, delivery and performance of this Agreement, the Indenture and the NotesRegistration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the Exchange Notes and the Private Exchange Notes, the issuance, offering issuance and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do Purchaser) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a lien on any property or assets of LNR or any Subsidiary or Investment Affiliate with respect to (i) the terms or provisions of any of the terms and or provisions ofof any material contract, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to instrument of which such counsel, counsel is aware to which the Company LNR or any of its significant subsidiaries Designated Subsidiary or either Land Partnership is a party or by which the Company LNR or any Designated Subsidiary or either Land Partnership may be bound, (ii) the certificate of its significant subsidiaries incorporation or bylaws or other comparable organizational documents of LNR or any Designated Subsidiary or the partnership agreement of their respective properties are boundeither Land Partnership, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the charter documents or by-laws accuracy of the Company or representations and warranties of the Initial Purchaser in Section 8 hereof) any of its significant subsidiariesstatute, or any statute or any judgment, decree, order, rule or regulation generally applicable to transactions of any court the type contemplated by the Memorandum or other governmental authority or any arbitrator known to such counsel and to be applicable to the Company LNR or its significant subsidiaries;any Designated Subsidiary or either Land Partnership.
(xxiv) No consent, approval, authorization or order of any governmental authority is required for the Company is not an “investment company” and, after giving effect to the Offering issuance and sale by LNR of the Notes to the Initial Purchaser, or the other transactions contemplated in this Agreement, except (i) as may be required under applicable securities laws in connection with the registration under the Act of the Notes, and the Private Exchange Notes, if applicable, pursuant to the Registration Rights Agreement and (ii) as may be required under state securities or blue sky laws (as to which such counsel need express no opinion).
(xv) Neither LNR nor any of its subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds therefromfrom such sale (as described in the Memorandum under the caption "Use of Proceeds") will be, will not be an “"investment company”, " as such that term is defined in the 1940 Investment Company Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which , and the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumrules and regulations under it.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiiixvi) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIATrust Indenture Act, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers Qualified Institutional Buyers or Accredited Investors, as those terms are defined in Rule 144A promulgated the rules under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation SAct, (ii) the accuracy of the Initial Purchasers’ Purchaser's representations in Section 8 and those of the Company LNR contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereofhereof and the offering and transfer procedures set forth in the Memorandum.
(xvii) Neither the sale, issuance, execution or delivery of the Notes nor any other transaction contemplated by this Agreement will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
(xviii) The statements under the captions "Description of the Notes," "Exchange Offer; Registration Rights" and "Notice to Investors; Transfer Restrictions" in the Memorandum or incorporated therein by reference, insofar as such statements constitute a summary of the documents referred to therein or matters of law, provide a fair and accurate summary in all material respects of the information called for with respect to such documents and matters under current law. At the time the foregoing opinion is delivered, Clifford Chance US LLP shall additionally state that it has partici▇▇▇▇▇ ▇▇ conferences with officers and other representatives of LNR, representatives of the independent public accountants for LNR, representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which conferences the contents of the Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Memorandum (except to the extent specified in subsection 7(a)(xviii)), no facts have come to its attention which lead it to believe that the Memorandum, on the date thereof or at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (it being understood that such firm need express no belief with respect to the financial statements and related notes thereto and the other financial or statistical data included in the Memorandum). In rendering any such its opinion, such counsel Clifford Chance US LLP may rely, state that they express no opinion as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws ▇▇▇ ▇▇▇s of any jurisdiction other than the federal laws of the United States, the laws of the State of New York or the United States or and the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Co
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from ▇▇the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇ Chance US LLP▇▇▇▇▇▇ & Zavis, counsel for the CompanyIssuers, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchaser, to the effect that:
(i) such counsel has no reason to believe that Each of the Issuers is duly incorporated (other than or in the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement case of a material fact limited partnership or omitted or omits to state any material fact necessary in order to make the statements thereinlimited liability company, in the light of the circumstances under which they were madeduly formed), not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations and in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation (or formation) and are has all requisite corporate (or partnership or limited liability company) power and authority to own its properties and to conduct its business as described in the Final Memorandum. Each of the Issuers is duly qualified to transact do business as a foreign corporations and are corporation (or limited partnership or limited liability company) in good standing under the laws of in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such counsel has been advised that qualification, except where the failure to be so qualified would amount not, individually or in the aggregate, reasonably be expected to have a material liability or disability to Material Adverse Effect.
(ii) The Company has the Company authorized, issued and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described outstanding capitalization set forth in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the outstanding shares of capital stock of the Company will have been duly authorized and validly issued, fully paid and nonassessable.
(iii) Based solely upon a review of the stock (or securities) transfer ledger, which was certified to us as true, correct and complete, and copies of the applicable certificates, all of the shares of capital stock of, or other securities evidencing equity ownership interests in, each Subsidiary of the Company purported to be owned by the Company or its Subsidiaries in the Final Memorandum are owned by the Company, or a Subsidiary of the Company. All of such issued and outstanding shares of capital stock of of, or other securities evidencing equity ownership interests in, each Subsidiary of the Company’s significant subsidiariesCompany (A) have been duly and validly authorized and issued, (B) are fully paid and non-assessable, (C) have not been issued in violation of any preemptive or, to such counsel's knowledge, similar rights and, (D) to such counsel's knowledge, after a review of the stock (or securities) transfer ledger, which was certified to such counsel as true, correct and complete, and copies of the applicable certificates are owned free and clear of any lien, except for liens securing obligations under the Credit Facility and liens for taxes not yet due and payable.
(iv) Except as otherwise set forth in the Final MemorandumMemorandum (A) there are no options, warrants or other rights to purchase from any of the Issuers shares of capital stock or ownership interests in any of the Issuers, (B) no agreements or other obligations to issue, or other rights to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in any of the Issuers are owned beneficially or will be outstanding and (C) no holder of securities of any of the Issuers is or will be entitled to have such securities registered under a registration statement filed by the Company free and clear of any perfected security interests or, Issuers pursuant to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;Registration Rights Agreement.
(iiiv) Each of the statements set forth Issuers has all requisite corporate (or partnership or limited liability company) power and authority to execute, deliver and perform each of its obligations under the heading “Description of Indenture, the Notes” in , the Final MemorandumExchange Notes, insofar as such statements purport to summarize certain provisions of the Private Exchange Notes and the Indenture, provide a fair summary of such provisionsGuarantees; and the statements set forth Indenture meets the requirements for qualification under the heading “Certain Federal Income Tax Consequences” in TIA; the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement Indenture has been duly and validly authorized, executed and delivered by the Company;
(v) the execution Issuers and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), constitutes the Indenture will be a legal, valid and legally binding agreement of the CompanyIssuers, enforceable against each of the Company Issuers in accordance with its terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta court of equity or law). The Indenture meets the requirements for qualification under the TIA.
(vi) The Notes and the Guarantees are in the form contemplated by the Indenture. The Notes and the Guarantees have been duly and validly authorized by all necessary corporate action the applicable Issuers and, when duly executed and delivered by the applicable Issuers and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Company and, on Indenture by the Trustee and as due authentication and delivery of the Closing DateNotes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the applicable Issuers, entitled to the benefits of the Indenture, and enforceable against each of the applicable Issuers in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a court of equity or law).
(vii) The Exchange Notes, the Private Exchange Notes will and the Guarantees thereof have been duly and validly authorized by the applicable Issuers, and when the Exchange Notes, the Private Exchange Notes and the Guarantees thereof have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the CompanyIssuers, entitled to the benefits of the Indenture, and enforceable against each of the applicable Issuers in accordance with their terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta court of equity or law).
(viii) Each of the Company Issuers has all requisite corporate (or partnership or limited liability company) power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company andand validly authorized, when duly executed and delivered by the Company Issuers (assuming due authorization, execution and delivery thereof by the Initial PurchasersPurchaser), will be a legal, and constitutes the valid and legally binding agreement of the CompanyIssuers, enforceable against each of the Company Issuers in accordance with its terms terms, except that (subject, as A) the enforcement thereof may be subject to enforcement of remedies, to applicable (i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effect a court of equity or law) and except that (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) Each of the execution Issuers has all requisite corporate (or partnership) power and delivery authority to execute, deliver and perform their obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company ofIssuers of the transactions contemplated hereby have been duly and validly authorized, executed and the performance delivered by the Company of its obligations underIssuers.
(x) The Indenture, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes Guarantees and the Private Exchange NotesRegistration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum.
(xi) To the knowledge of such counsel, except as disclosed in the issuanceFinal Memorandum, offering and no legal or governmental proceedings are pending or threatened to which any of the Issuers or any of their Subsidiaries is a party or to which the property or assets of any of the Issuers or any of their Subsidiaries is subject which, if determined adversely to any of the Issuers or any of their Subsidiaries, would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and be sold hereunder or the consummation of the other transactions herein contemplated do not described in the Final Memorandum under the caption "Use of Proceeds."
(xxii) require To the consentknowledge of such counsel, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws none of the various states Issuers is (i) in violation of the United States its certificate or articles of America and other U.S. jurisdictions incorporation or bylaws (or limited partnership agreement or similar organizational document), (ii) in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions ofstatute, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, except for any such breach or violation which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or (iii) in breach or default under (nor has any event occurred which, with notice or passage of time or both, would constitute a default under) or in violation of any court of the terms or other governmental authority provisions of any Contract described in the Memorandum or otherwise known to such counsel, except for any arbitrator such breach, default, violation or event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xiii) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Notes to the Initial Purchaser) will not conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any Contract described in the Memorandum or otherwise known to such counsel to which any of the Issuers or their Subsidiaries is a party, except for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) the certificate or articles of incorporation or bylaws (or limited partnership agreement or similar organizational document) of any of the Issuers, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof) any statute, judgment, decree, order, rule or regulation described in the Memorandum or otherwise known to such counsel to be applicable to any of the Company Issuers, their Subsidiaries or its significant subsidiaries;any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xxiv) No consent, approval, authorization or order of any governmental authority is required for the Company is not an “investment company” and, after giving effect issuance and sale by the Issuers of the Securities to the Offering Initial Purchaser or the consummation by the Issuers of the Notes other transactions contemplated hereby, except such (a) as may be required under Blue Sky laws, as to which such counsel need express no opinion, (b) as may be required from the Commission in connection with the transactions contemplated by the Registration Rights Agreement and (c) as have previously been obtained.
(xv) To the knowledge of such counsel, each of the Issuers and their Subsidiaries has obtained all Permits necessary to conduct the businesses now or proposed to be conducted by it as described in the Final Memorandum, the lack of which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; to the knowledge of such counsel, each of the Issuers and their Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Permit.
(xvi) To the knowledge of such counsel, the Issuers and their Subsidiaries own or possess adequate licenses or other rights to use all patents, trademarks, service marks, trade names, copyrights and know-how necessary to conduct the businesses now or proposed to be operated by them as described in the Final Memorandum, and the application Issuers have not received any notice of the proceeds therefrominfringement of or conflict with asserted rights of others with respect to any patents, will not trademarks, service marks, trade names, copyrights or know-how which, if such assertion of infringement or conflict were sustained, would reasonably be an “investment company”, as such term is defined in the 1940 Act; andexpected to have a Material Adverse Effect.
(xixvii) To the knowledge of such counsel does not know of any counsel, there are no legal or governmental proceedings pending or threatened to which against any of the Company Issuers, their Subsidiaries or any of its subsidiaries is a party their respective properties or to assets which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or Memorandum, nor are there any statutes, regulations, material contracts or other documents that which would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xiixviii) commencing with None of the Company’s taxable year ended December 31Issuers is, 1998, nor immediately after the Company was organized sale of the Notes to be sold hereunder and has operated the application of the proceeds from such sale (as described in conformity with the requirements for qualification as a real estate investment trust (“REIT”) Final Memorandum under the Codecaption "Use of Proceeds") will be, and an "investment company" as such term is defined in the Company’s present and proposed method Investment Company Act of operation1940, as represented by the Company, will permit the Company to continue to so qualifyamended.
(xiiixix) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the a Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) Qualified Institutional Buyers or Accredited Investors or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ Purchaser's representations in Section 8 and those of the Company Issuers contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(bxx) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Neither the Initial Purchasers, dated consummation of the Closing Date, with respect to certain legal matters relating to transactions contemplated by this Agreement and such other related matters as nor the Initial Purchasers may reasonably require. In rendering such opinionsale, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersissuance, execution or delivery of the Notes will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
(cxxi) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, statements under the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
captions "Risk Factors-- Reliance on Third Party Reimbursement," "Risk Factors--Extensive Government Regulation," "Use of Proceeds," "Business--Dialysis Industry Overview" (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretolast paragraph only), neither the Company nor any "Business--Sources of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Revenue Reimbursement," "Business--Regulatory Matters," "Management-- Employment Agreements," "Management--Voting Agreements," "Certain Relationships
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and are subject to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Notes in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Notes.
(c) The Initial Purchasers shall have received a legal on the Closing Date an opinion from of Fulbright & ▇▇▇▇▇▇▇▇ Chance US LLPL.L.P., counsel for the Company, dated the Closing DateDate and addressed to the Initial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements The Company is a corporation duly incorporated and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have Delaware with full corporate power and authority to own, lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final MemorandumOffering Memorandum (and any amendment or supplement thereto);
(ii) Each Significant Subsidiary (as defined in Section 1.02(w) of Regulation S-X promulgated under the Act) is a corporation validly existing and in good standing under the laws of the jurisdiction of its organization, with full corporate power and authority to own, lease, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture operate its properties and to carry out conduct its business as described in the Offering Memorandum (and any amendment or supplement thereto); and all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final MemorandumSignificant Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and to the knowledge of such counsel, are wholly owned beneficially by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any perfected security interests orinterest, to the best knowledge of such counsellien, any adverse claim, equity or other security interests, liens, encumbrances, equities or claimsencumbrance, except as described in the Offering Memorandum and except for pledges the shares of subsidiary capital stock under debt instrumentsof certain Subsidiaries pledged to Citibank as agent in connection with the Credit Agreement and/or to Meditrust;
(iii) The authorized capital stock of the statements Company is as set forth under the heading “Description of Notes” caption "Capitalization" in the Final Offering Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) The Company has corporate power and authority to enter into this Agreement and the execution Registration Rights Agreement and delivery of to issue, sell and deliver the Notes to be sold by it to the Initial Purchasers as provided herein, and this Agreement and the Registration Rights Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company andauthorized, when duly executed and delivered by the Company (assuming the due authorizationand are valid, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid legal and binding agreement agreements of the Company, enforceable against the Company in accordance with its terms their terms, except (subject, A) as to enforcement of remediesrights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy and (B) subject to the qualification that the enforceability of the Company's obligations hereunder and thereunder may be limited by bankruptcy, to applicable bankruptcyfraudulent conveyance, insolvency, reorganization, insolvencymoratorium, moratorium or and other laws relating to or affecting creditors’ ' rights generally from time to time in effect). and by general equitable principles;
(v) The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have has been duly authorized by all necessary corporate action of the Company andand validly authorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture)Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be is a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subjectterms, as subject to enforcement the qualification that the enforceability of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution the Company's obligations thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company ofbankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and the performance other laws relating to or affecting creditors' rights generally and by the Company general equitable principles; and no qualification of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and under the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be 1939 Act is required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act contemplated hereby or the TIA in connection with the exchange offer contemplated Exempt Resales;
(vi) The Notes have been duly and validly authorized by the Company and when executed by the Company in accordance with the Indenture and, assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(vii) Neither the offer, sale or delivery of the Notes, the execution, delivery or performance by the Company of this Agreement, the Registration Rights AgreementAgreement or the Indenture, compliance by the Company with the provisions hereof or (y) conflict with thereof nor consummation by the Company of the transactions contemplated hereby or result in thereby constitutes or will constitute a breach or violation of any of the terms and provisions of, or constitute a default under, in any material respect, the certificate or articles of incorporation or bylaws or other organizational documents of the Company or any of the Significant Subsidiaries or any material agreement, indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, instrument to which the Company or any of its significant subsidiaries the Significant Subsidiaries is a party or by which the Company or any of its significant subsidiaries them or any of their respective properties are boundis bound that is an exhibit to any Incorporated Document or is known to such counsel, or will result in the charter documents creation or by-laws imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its significant subsidiariesthe Significant Subsidiaries pursuant to the terms of any material agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of the property or assets of any of them is subject that is an exhibit to any Incorporated Document or is known to such counsel, nor will any such action result in any violation in any material respect of any existing law, or any statute or any regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws and, in the case of the Registration Rights Agreement, the Act and the Exchange Act and the 1939 Act), judgment, decreeinjunction, order, rule order or regulation of any court or other governmental authority or any arbitrator decree known to such counsel and counsel, applicable to the Company or its significant subsidiariesthe Significant Subsidiaries or any of their respective properties;
(xviii) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property part of the Company (except as have been obtained under the Exchange Act, or any such as may be required under state securities or Blue Sky laws governing the purchase and distribution of its subsidiaries is subject that would the Notes, or such as may be required to be described in a prospectus pursuant to qualify the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) Indenture under the Code1939 Act, and the Company’s present and proposed method of operation, such as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is may be required in connection with the performance by the Company of its obligations under the Registration Rights Agreement, as to which such counsel need not express an opinion) for the valid issuance and sale of the Notes to the Initial Purchasers as contemplated by this Agreement Agreement;
(ix) The Incorporated Documents (except for the financial statements and the Final notes thereto and the schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion), at the time they were filed, appear on their face to have complied as to form in all material respects with the requirements of the Exchange Act;
(x) To the knowledge of such counsel, (A) there are no legal or governmental proceedings pending or threatened against the Company or any of the Subsidiaries, or to which the Company or any of the Subsidiaries, or any of their property, are subject, which are not disclosed in the Offering Memorandum and which, if adversely decided, are reasonably likely to cause a Material Adverse Effect or materially affect the issuance of the Notes or the consummation of the transactions contemplated by the Operative Documents and (B) there are no material agreements, contracts, indentures, leases or other instruments, that are not described in the Offering Memorandum (or any amendment or supplement thereto) or that are required to be filed as an exhibit to any Incorporated Document that are not filed as required;
(xi) The statements in the Offering Memorandum, insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions, are accurate in all material respects and present fairly the information described therein;
(xii) When the Notes are issued and delivered pursuant to this Agreement, such Notes will not be of the same class (within the meaning of Rule 144A(d)(3) under the Act) as any security of the Company that is listed on a national securities exchange registered under Section 6 of the Exchange Act or that is quoted in a United States automated interdealer quotation system;
(xiii) No registration of the Notes under the Act is required for the sale of the Notes to the Initial Purchasers as contemplated in this Agreement or for the Exempt Resales (assuming (A) that any Eligible Purchaser who buys the Notes in the Exempt Resales is a Qualified Institutional Buyer and (B) the accuracy of the Initial Purchasers' representations and those of the Company in this Agreement regarding the absence of general solicitation in connection with the initial Exempt Resales);
(xiv) The Company is not required to deliver the information specified in Rule 144A(d)(4) in connection with the offering and resale of the Notes by the Initial Purchasers Purchasers; and
(xv) Although such counsel has not undertaken, except as otherwise indicated in accordance with Section 8 of this Agreementtheir opinion, to determine independently, and prior does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Offering Memorandum, such counsel has participated in the preparation of the Offering Memorandum, including review and discussion of the contents thereof, and has reviewed the Incorporated Documents, and, relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company, nothing has come to the commencement attention of such counsel that has caused them to believe that the Offering Memorandum, as of its date and as of the Exchange Offer (as defined in the Registration Rights Agreement) Closing Date contained an untrue statement of a material fact or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not omitted to state a material fact required to be qualified under stated therein or necessary to make the TIAstatements therein, in each case assuming light of the circumstances under which they were made, not misleading or that any amendment or supplement to the Offering Memorandum, as of its respective date, and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (i) (A) it being understood that such counsel need express no opinion with respect to the purchasers who buy such Notes financial statements and the notes thereto and the schedules and other financial and statistical data included or incorporated by reference in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) Offering Memorandum and information furnished by or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy on behalf of the Initial Purchasers’ representations in Section 8 and those ). The opinion of such counsel shall be limited to the laws of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinionUnited States, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or and the United States or the General Corporation Law internal corporation law of the State of Delaware, to .
(d) The Initial Purchasers shall have received on the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the Closing Date an opinion of ▇▇▇▇▇▇▇▇ LLP▇. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to , Esq., General Counsel of the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersCompany, dated the Closing Date, with respect to certain legal matters relating to this Agreement Date and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory addressed to the Initial Purchasers to the effect that:
(i) The Company is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the representations and warranties nature of its properties or the Company in this Agreement are true and correct as if made on and as conduct of its business requires such registration or qualification, except where the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part failure so to register or qualify or to be performed or satisfied at or prior to the Closing Date; andin good standing does not have a Material Adverse Effect;
(ii) subsequent All the shares of capital stock of the Company outstanding prior to the respective dates issuance of the Notes have been duly authorized and validly issued, are fully paid and nonassessable;
(iii) Each Subsidiary is duly registered and qualified to conduct its business and is in good standing as a foreign corporation or limited partnership in each jurisdiction or place where the nature of which information is given its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or to be in the Final Memorandum good standing does not have a Material Adverse Effect;
(exclusive of any amendment or supplement thereto), neither iv) Neither the Company nor any of its subsidiaries has sustained the Subsidiaries is in violation in any material loss respect of its respective certificate or interference with articles of incorporation or bylaws, or other organizational documents, or to the best knowledge of such counsel after reasonable inquiry, is in default in any material respect in the performance of any material obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective businesses properties may be bound, except as disclosed in the Offering Memorandum and except to the extent that any such violation or properties from fire, flood, hurricane, accident or other calamity, whether or default would not covered by insurance, or from any labor dispute or any legal or governmental proceeding, have a Material Adverse Effect;
(v) Such counsel has no reason to believe that the Company and there has its Subsidiaries do not been any materially adverse change have all Permits (including, without limitation, such Permits as are necessary under such federal and state health care laws and under such HMO and similar licensure laws and such insurance laws and regulations as are applicable to the Company and its Subsidiaries) as are necessary to own, lease and operate its properties and conduct its business, except to the extent that the failure to have such Permits would not have a change in management Material Adverse Effect; and to the best knowledge of such counsel after reasonable inquiry there are no proceedings pending or control), threatened against the Company or development involving a prospective materially adverse change, in any of its Subsidiaries that may cause any such Permit that is material to the condition (financial or otherwise), management, earnings, properties, conduct of the business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiariesSubsidiaries to be revoked, taken as a wholewithdrawn, except in each case as described in cancelled, suspended or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).not renewed;
(evi) Subsequent Such counsel has no reason to believe that (a) the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction business practices of the possible changeCompany or any of its Subsidiaries violate in any material respect any applicable provisions of federal or state law governing Medicare or any state Medicaid program, including without limitation, Sections 1320a-7a and 1320a-7b of Title 42 of the United States Code, or that any individual with an ownership or control interest, as defined in 42 U.S.C. ss.1320a-3(a)(3), in the rating accorded Company or any of the Company’s securities by any “nationally recognized statistical rating organization”its Subsidiaries or who is an officer, director, or managing employee as such term is defined for purposes in 42 U.S.C. ss.1320a-5(b), of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.an
Appears in 1 contract
Sources: Purchase Agreement (Integrated Health Services Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes Securities shall, be subject, in the Initial Purchasers’ its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from the opinion, dated the Closing Date and addressed to the Initial Purchaser, of Kapl▇▇, ▇▇ra▇▇▇▇ Chance US LLP▇▇▇ Kapl▇▇, ▇.A., Minnesota counsel for the Company, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchaser, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been Holdings is duly organized and are incorporated, validly existing as corporations and in good standing under the laws of their respective jurisdictions the State of incorporation Minnesota and are duly qualified to transact business as foreign corporations and are in good standing under the laws of has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate their respective own its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum. Each of the Company and Holdings is duly qualified to do business as a foreign corporation in good standing in the State of Missouri.
(ii) Each of the Company and Holdings has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the Private Exchange Notes; the Indenture has been duly and validly authorized by the Company and Holdings; the Notes have been duly and validly authorized by the Company; the Guarantee has been duly and validly authorized by Holdings; and the Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company.
(iii) Each of the Company and Holdings has all requisite corporate power and authority to enter into execute, deliver and perform its obligations under the Registration Rights Agreement; and the Registration Rights Agreement has been duly and validly authorized by the Company and Holdings.
(iv) Each of the Company and Holdings has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; and this Agreement and the consummation by the Company and Holdings of the transactions contemplated hereby have been duly and validly authorized by the Company and Holdings.
(v) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement and the Indenture consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to carry out the Initial Purchaser) will not constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the certificate of incorporation or bylaws (or similar organizational document) of the Company or Holdings, or (ii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the terms accuracy of the representations and provisions warranties of the Initial Purchaser in Section 8 hereof and thereof the representations and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action warranties of the Company and Holdings in Section 2(dd) hereof) any statute or regulation which to such counsel's actual knowledge are applicable to the Agreement has been duly executed Company or Holdings or any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect. The opinion of Kapl▇▇, ▇▇ra▇▇▇▇ ▇▇▇ Kapl▇▇, ▇.A. described in this Section may be limited to matters of Minnesota law and delivered by shall be rendered to the Initial Purchaser at the request of the Company and shall so state therein.
(b) On the Closing Date, the Initial Purchaser shall have received the opinion, dated the Closing Date and addressed to the Initial Purchaser, of O'Su▇▇▇▇▇▇ ▇▇▇ev & Karabell, LLP, counsel for the Company;, in form and substance satisfactory to counsel for the Initial Purchaser, to the effect that:
(vi) The Indenture meets the execution and delivery of requirements for qualification under the Indenture have been duly authorized by TIA; the Company andIndenture, when duly executed and delivered by the Company and Holdings (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the valid and legally binding agreement of the Company and Holdings, enforceable against the Company and Holdings in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(ii) The Notes are in the form contemplated by the Indenture. The Notes, when duly executed and delivered by the Company and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will be a legal, constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms their terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effect). The Indenture meets and (ii) general principles of equity and the requirements for qualification under discretion of the TIAcourt before which any proceeding therefor may be brought.
(viiii) The Guarantee is in the form contemplated by the Indenture. The Guarantee, when duly executed and delivered by Holdings, and when the Notes have been are duly authorized by all necessary corporate action of the Company andand validly authorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication and paid for by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable Initial Purchaser in accordance with their the terms of this Agreement, will constitute the valid and legally binding agreement of Holdings, enforceable against Holdings in accordance with its terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time in effectand (ii) general principles of equity and entitled to the benefits discretion of the Indenture; no holder of securities of the Company has court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;proceeding therefor may be brought.
(viiiv) the The Exchange Notes and the Private Exchange Notes have been duly authorized by the CompanyNotes, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms terms, except that the enforcement thereof may be subject to (subject, as to enforcement of remedies, to applicable i) bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(v) The Registration Rights Agreement, when duly executed and delivered by the Company and Holdings (assuming due authorization, execution and delivery thereof by the Initial Purchaser), will constitute the valid and legally binding agreement of the Company and Holdings, enforceable against the Company and Holdings in accordance with its terms, except that (A) the enforcement thereof may be subject to time (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and except that (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) . No opinion need be given with respect to the execution and delivery by enforceability of the Company of, and the performance by the Company additional in- terest provisions contained in Section 4 of its obligations under, this Agreement, the Registration Rights Agreement.
(vi) The Indenture, the Indenture and the Notes, the Exchange Notes Guarantee and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum.
(yvii) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to To such counsel's actual knowledge, no legal or governmental proceedings are pending to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries Holdings is a party or to which the property or assets of the Company or any of its subsidiaries Holdings is subject that which would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the other transactions described in the Final Memorandum under the caption "Use of Proceeds."
(viii) The execution, delivery and performance by the Company and Holdings of this Agreement, the Indenture, the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation, the issuance and sale of the Securities to the Initial Purchaser) will not constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation or any statutesof (i) the terms or provisions of any Contract set forth on a list attached to an officer's certificate of the Company and certified as being all material real estate leases, regulationsall material agreements entered into in connection with the Recapitalization and all agreements relating to indebtedness for borrowed money; (ii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof and the representations and warranties of the Company and Holdings in Section 2(dd) hereof) any statute, or regulation actually known to such counsel to be applicable to the Company or Holdings or any of their respective properties or assets, or (iii) any judgment, decree or order set forth on a list attached to an officer's certificate of the Company and certified as being all material judgments, decrees and orders naming Holdings or the Company and binding on it or its property except for any such breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(ix) Assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof and the representations and warranties of the Company and Holdings in Section 2(dd) hereof, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company of the Notes to the Initial Purchaser or the consummation by the Company of the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained.
(x) To the actual knowledge of such counsel, there are no material contracts or other documents that to which the Company or Holdings is a party which would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xiixi) commencing with the Company’s taxable year ended December 31, 1998, Neither the Company was organized nor Holdings is, or immediately after the sale of the Securities to be sold hereunder and has operated the application of the proceeds from such sale (as described in conformity with the requirements for qualification as a real estate investment trust (“REIT”) Final Memorandum under the Codecaption "Use of Proceeds") will be, and an "investment company" as such term is defined in the Company’s present and proposed method Investment Company Act of operation1940, as represented by the Company, will permit the Company to continue to so qualifyamended.
(xiiixii) No registration under the Act of the Notes Securities is required in connection with the sale of the Notes Securities to the Initial Purchasers Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes Securities by the Initial Purchasers Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or accredited investors as defined in Rule 501(a) (1), (2), (3) or (B7) that promulgated under the offer or sale of the Notes is made in an offshore transaction as defined in Regulation SAct ("Accredited Investors"), (ii) the accuracy of the Initial Purchasers’ Purchaser's representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation solici- tation in connection with the sale of such Notes Securities to the Initial Purchasers Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to .
(xiii) Neither the extent such counsel deems proper, on certificates of responsible officers consummation of the Company and public officials andtransactions contemplated by this Agreement nor the sale, as to matters involving the application of laws of any jurisdiction other than the State of New York issuance, execution or the United States or the General Corporation Law delivery of the State Notes will violate Regulation G, T, U or X of Delawarethe Board of Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇O'Su▇▇▇▇▇▇ LLP▇▇▇ev & Karabell, LLP shall additionally state that it has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except as expressly set forth in paragraph (vi) above), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, 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 contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need make no statement of belief and express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). An The opinion of ▇O'Su▇▇▇▇▇▇ ▇▇▇ev & Karabell LLP described in this Section shall be delivered rendered to the Initial Purchasers Purchaser at the request of the Company and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasersshall so state therein. References to the Final Memorandum in this subsection (ab) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(bc) The On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇the opinion, in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇, ▇▇▇ LLP, counsel unsel for the Initial Purchasers, dated the Closing DatePurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇ ▇▇▇▇▇▇ LLP shall ll have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(cd) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP the Independent Accountants a comfort letter or letters dated, respectively, dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser.
(de) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company and Holdings contained in this Agreement are shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company has shall have performed in all material respects all covenants and agreements and satisfied all conditions on its their part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) subsequent to the respective dates , except as of which information is given described in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.theret
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLPthe opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of DLA Piper LLP (US), counsel for the Company, dated in form and substance reasonably satisfactory to counsel for the Closing DateInitial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are Subsidiaries is validly existing as corporations and in good standing under the laws of their its respective jurisdictions jurisdiction of incorporation organization and are duly qualified to transact business as foreign corporations and are in good standing under the laws of has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, own or lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Pricing Disclosure Package and the Final Memorandum.
(ii) The Company has the authorized, issued and outstanding capitalization as set forth in the Pricing Disclosure Package and the Company has corporate power to enter into this AgreementFinal Memorandum under the caption “Capitalization”, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and as of the Notes date stated under the caption; to be carried out by it; the knowledge of such counsel, all of the issued and outstanding shares of capital stock of each or ownership interests of the Company’s significant subsidiaries, except as otherwise set forth in Company and the Final MemorandumSubsidiaries have been duly authorized and validly issued, are owned beneficially by the Company free fully paid and clear nonassessable and were not issued in violation of any perfected security interests or, preemptive rights or similar rights; to the best knowledge of such counsel, any all of the outstanding shares of capital stock or ownership interests of the Subsidiaries are owned, directly or indirectly, by the Company, free and clear of all perfected security interests (other security intereststhan securing indebtedness under the senior credit facility (or its predecessor)) and, to the knowledge of such counsel, free and clear of all other liens, encumbrances, equities and claims or claims, except for pledges restrictions on transferability (other than those imposed by the Act and the securities or “Blue Sky” laws of subsidiary stock under debt instruments;certain jurisdictions) or voting.
(iii) the statements Except as set forth under the heading “Description of Notes” in the Pricing Disclosure Package and the Final MemorandumMemorandum or in any filing by the Company with the Commission and to the knowledge of such counsel (A) no options, insofar as such statements purport warrants or other rights to summarize certain provisions purchase from the Company or any Subsidiary shares of capital stock or ownership interests in the Company or any Subsidiary are outstanding, (B) no agreements or other obligations to issue, or other rights to convert any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company or any Subsidiary are outstanding and (C) no holder of securities of the Notes and Company or any Subsidiary is entitled to have such securities registered under a registration statement filed by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus Company pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;Registration Rights Agreement.
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action Each of the Company and the Agreement Subsidiary Guarantors has all requisite corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Guarantees, the Exchange Securities and the Private Exchange Notes; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly executed and delivered validly authorized by the Company;
(v) the execution and delivery each of the Indenture have been duly authorized by Company and the Company Subsidiary Guarantors and, when duly executed and delivered by each of the Company and the Subsidiary Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the valid and legally binding agreement of each of the Company and the Subsidiary Guarantors, enforceable against each of the Company and the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to the Enforceability Exceptions.
(v) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), the Notes will be a legal, constitute the valid and legally binding agreement obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with its terms (subjecttheir terms, as except that the enforcement thereof may be subject to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIAEnforceability Exceptions.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the CompanyCompany and, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), the Exchange Notes and the Private Exchange Notes will be constitute the legal, valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms terms, except that the enforcement thereof may be subject to the Enforceability Exceptions.
(subjectvii) The Guarantees and the guarantees of the Exchange Notes and the Private Exchange Notes have been duly and validly authorized by each Subsidiary Guarantor and, as when executed by each of the Subsidiary Guarantors and when the Notes are duly executed and delivered against payment therefor and are authenticated by the Trustee in accordance with the provisions of the Indenture, such Guarantees and such guarantees of the Exchange Notes and the Private Exchange Notes will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of each Subsidiary Guarantor, entitled to the benefits of the Indenture and enforceable against the Subsidiary Guarantors in accordance with their terms, except that the enforcement of remedies, thereof may be subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)the Enforceability Exceptions.
(viii) Each of the Company and the Subsidiary Guarantors has all requisite corporate corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by each of the Company and the Subsidiary Guarantors and, when duly executed and delivered by each of the Company and the Subsidiary Guarantors (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, constitute the valid and legally binding agreement of each of the CompanyCompany and the Subsidiary Guarantors, enforceable against each of the Company and the Subsidiary Guarantors in accordance with its terms (subjectterms, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that (A) the enforcement thereof may be subject to the Enforceability Exceptions and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) Each of the execution Company and delivery the Subsidiary Guarantors has all requisite corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company of, and each of the performance Subsidiaries of the transactions contemplated hereby have been duly and validly authorized by the Company and each of its obligations underthe Subsidiary Guarantors. This Agreement has been duly executed and delivered by the Company and each of the Subsidiary Guarantors.
(x) The Indenture, this Agreementthe Notes, the Guarantees and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Pricing Disclosure Package and the Final Memorandum.
(xi) The statements in the Pricing Disclosure Package and the Final Offering Memorandum under the captions “Certain United States Federal Income Tax Considerations” fairly present and summarize, in all material respects, the matters referred to therein.
(xii) None of the Company or the Subsidiaries is (i) to the knowledge of such counsel, in violation of its certificate of incorporation or bylaws (or similar organizational document) or (ii) to the knowledge of such counsel, in breach or default under (nor has any event occurred that, with notice or passage of time or both, would constitute a default under) or in violation of any of the terms or provisions of any Contract filed as an exhibit to the Company’s Form 10-K for the year ended December 31, 2015, except for any such breach, default, violation or event which would not, individually or in the aggregate, have a Material Adverse Effect.
(xiii) The execution, delivery and performance of this Agreement, the Indenture and the NotesRegistration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the Exchange Notes and the Private Exchange Notes, the issuance, offering issuance and sale of the Notes to the Initial Purchasers by Purchasers) will not conflict with or constitute or result in a breach of or a default under (nor has any event occurred that, with notice or passage of time or both would constitute a default under or violation of) any of (i) the Company pursuant to this Agreement, the compliance by the Company with the other terms or provisions of this Agreement and any Contract filed as an exhibit to the consummation Company’s Form 10-K for the year ended December 31, 2015 (assuming the application of proceeds from the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer issuance and sale of the Notes by as described in the Initial Purchasers Pricing Disclosure Package and the Final Memorandum), except those for any such conflict, breach, violation, default or event that may could not reasonably be required by expected to have, individually or in the Act aggregate, a Material Adverse Effect, (ii) the certificate of incorporation or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, bylaws (or (ysimilar organizational document) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiariesthe Subsidiaries, or (iii) to such counsel’s knowledge (assuming compliance with all applicable state securities or “Blue Sky” laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 of this Agreement) any statute or any statute, judgment, decree, order, rule or regulation in the States of any court Arizona, California, Delaware, New York or other governmental authority or any arbitrator Texas known to such counsel and to be applicable to the Company or its significant subsidiaries;any of the Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(xxiv) Except for those consents as to which the failure to obtain would not, individually or in the aggregate, have a Material Adverse Effect on the consummation of the transactions contemplated hereby, no consent, approval, authorization or order of any U.S. federal, Arizona, California, Delaware, New York or Texas governmental authority is required for the issuance and sale by the Company is not an “investment company” and, after giving effect to the Offering of the Notes and to the application Initial Purchasers or the consummation by the Company of the proceeds therefromother transactions contemplated hereby, will not except such as may be an “investment company”required under Blue Sky laws, as to which such term is defined in the 1940 Act; andcounsel need express no opinion, and those which have previously been obtained.
(xixv) To the knowledge of such counsel does not know of any counsel, there are no legal or governmental proceedings pending involving or threatened to which affecting the Company or any of its subsidiaries is a party or to which the property of the Company Subsidiaries or any of its subsidiaries is subject their respective properties or assets that would be required to be described in a prospectus pursuant to the Act that are not described in the Pricing Disclosure Package and the Final Memorandum or Memorandum, nor are there, to the knowledge of such counsel, any statutes, regulations, material contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Pricing Disclosure Package and the Final Memorandum.
(xiixvi) commencing with the Company’s taxable year ended December 31, 1998, None of the Company was organized or the Subsidiaries is, or immediately after the sale of the Notes and has operated Guarantees and the application of the proceeds from such sale (as described in conformity with the requirements for qualification as a real estate investment trust (Pricing Disclosure Package and the Final Memorandum under the caption “REITUse of Proceeds”) under will be, an “investment company” as such term is defined in the Code, and the Company’s present and proposed method Investment Company Act of operation1940, as represented by the Company, will permit the Company to continue to so qualifyamended.
(xiiixvii) No registration under the Act of the Notes and Guarantees is required in connection with the sale of the Notes and Guarantees to the Initial Purchasers as contemplated by this Agreement and the Pricing Disclosure Package and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (Ai)(A) that the purchasers who buy such Notes in the initial resale thereof are reasonably believed to be qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in compliance with Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to .
(xviii) Neither the extent such counsel deems proper, on certificates of responsible officers consummation of the Company and public officials andtransactions contemplated by this Agreement nor the sale, as to matters involving the application of laws of any jurisdiction other than the State of New York issuance, execution or the United States or the General Corporation Law delivery of the State Notes will violate Regulation T, U or X of Delawarethe Board of Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, to DLA Piper LLP (US) shall additionally state that it has participated in conferences with officers and other representatives of the extent satisfactory in form and scope to counsel Company, representatives of the independent public accountants for the Initial PurchasersCompany, upon the opinion representatives of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by Purchasers, at which conferences the Initial Purchasers. References to contents of the Pricing Disclosure Package and the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in this the Pricing Disclosure Package or the Final Memorandum (except to the extent specified in subsection (a7(a)(x) shall include any amendment and 7(a)(xi)), no facts have come to its attention which lead it to believe that the Pricing Disclosure Package, as of the Time of Execution or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date, or that the Final Memorandum, as of its date or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Company’s books and records included or incorporated by reference in the Pricing Disclosure Package or the Final Memorandum). The opinion of DLA Piper LLP (US) described in this Section shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon the representations and warranties of the Initial Purchasers and the Company contained in this Agreement, certificates of officers of the Company and any of the Subsidiaries and certificates of public officials.
(b) The On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP each of KPMG a comfort letter or letters dated, respectively, dated the date hereof and the Closing Datehereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.r
Appears in 1 contract
Sources: Purchase Agreement (Mobile Mini Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, hereunder shall be subject, in the Initial Purchasers’ sole their discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company contained herein as of the date hereof are, at and as of each Closing DateTime of Delivery, as if made on true and as of each Closing Datecorrect, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed, and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, shall have furnished to you such opinion or opinions, dated the Closing Datesuch Time of Delivery, with respect to certain legal such matters relating to this Agreement as you may reasonably request, and such other related matters counsel shall have received such papers and information as the Initial Purchasers they may reasonably require. In rendering request to enable them to pass upon such opinionmatters;
(b) DLA Piper LLP (US), counsel for the Company, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP , General Counsel of the Company, shall have received furnished to you their written opinions, dated such Time of Delivery, in form and may rely upon such certificates and other documents and information as it may reasonably request substance agreed to pass upon such matters.by the parties prior to the date hereof;
(c) The Initial Purchasers On the date of the Offering Circular concurrently with the execution of this Agreement and also at each Time of Delivery, Ernst & Young LLP shall have received from PricewaterhouseCoopers LLP furnished to you a letter or letters datedletters, respectively, dated the date hereof and the Closing Daterespective dates of delivery thereof, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:you;
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither Neither the Company nor any of its subsidiaries has shall have sustained since the date of the latest audited financial statements included in the Pricing Circular any material loss or interference with their respective businesses or properties its business from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, order or decree, otherwise than as set forth or contemplated in the Pricing Circular, and (ii) since the respective dates as of which information is given in the Pricing Circular there has shall not have been any materially adverse change (including, without limitation, a change in management the capital stock or control)long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective materially adverse change, in or affecting the condition (financial or otherwise)general affairs, management, earnings, properties, business affairs or business prospectsfinancial position, stockholders’ equity, net worth equity or results of operations of the Company or any of and its subsidiaries, taken otherwise than as a wholeset forth or contemplated in the Pricing Circular, except the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in this Agreement and in each case as described in or contemplated by of the Final Memorandum (exclusive of any amendment or supplement thereto).Pricing Disclosure Package and the Offering Circular;
(e) Subsequent to On or after the execution and delivery of this Agreement and prior to the Closing Date, there Applicable Time (i) no downgrading shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s debt securities by any “nationally recognized statistical rating organization”, as such that term is defined for purposes of Rule 436(g)(2by the Commission in Section 3(a)(62) under the Exchange Act., and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities;
(f) The Indenture On or after the Applicable Time there shall not have been executed occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on NASDAQ; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and delivered by all in the parties thereto.manner contemplated in the Pricing Disclosure Package and the Offering Circular;
(g) On A number of shares of Common Stock equal to the Closing DateMaximum Number of Underlying Securities shall have been duly listed, subject to notice of issuance, on the NASDAQ;
(h) The Company shall have obtained and delivered to the Initial Purchasers executed copies of an agreement from each of the Company’s directors and executive officers listed in Schedule IV hereto, substantially to the effect set forth in Exhibit A hereof;
(i) The Initial Purchasers shall have received an executed original copy of the Registration Rights Agreement executed Indenture;
(j) The Securities shall be eligible for clearance and settlement through the facilities of DTC; and
(k) The Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company and of all of its obligations hereunder to be performed at or prior to such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing DateTime of Delivery, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers matters set forth in subsection (e) of this Section and counsel for the Initial Purchasers. The Company shall furnish as to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities other matters as the Initial Purchasers shall you may reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, Securities are subject to the accuracy continued accuracy, as of the Closing Time, of the representations and warranties of the Company contained Issuers herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Datecontained, to the accuracy of the statements of the Company’s Issuers and officers of the Issuers made in any certificate pursuant to the provisions hereof, to the performance by the Company Issuers of its covenants and agreements hereunder their respective obligations hereunder, and to the following additional further conditions:
(a) On At the Closing DateTime, the Initial Purchasers shall have received a legal the opinion from ▇▇▇of Wachtell, Lipton, ▇▇▇▇▇ Chance US LLP& ▇▇▇▇, counsel to the Issuers, dated as of the Closing Time, in the form set forth below and otherwise reasonably satisfactory to the Initial Purchasers and counsel for the Company, dated the Closing DateInitial Purchasers, to the effect that:
(i1) BBC has been duly incorporated and is validly existing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its assets and properties and conduct its business as described in the Offering Memorandum and to enter into and perform its obligations under this Agreement and the other Operative Documents; BBC is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such counsel qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect;
(2) BBC has all requisite corporate power and authority to issue the Guarantee;
(3) the authorized, issued and outstanding capital stock of BBC is as set forth in the Offering Memorandum under the caption "Capitalization";
(4) BBC has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Registration Rights Agreement, the Securities, the Exchange Securities, the Private Exchange Securities and the Indenture and to consummate each other element of the Recapitalization to which it is a party; and each of this Agreement, the Registration Rights Agreement, the Securities, the Exchange Securities, the Private Exchange Securities and the Indenture has been duly authorized by BBC and each other element of the Recapitalization to which BBC is a party has been duly authorized by BBC.
(5) no reason to believe that consent, approval, authorization, license, qualification or order of or filing or registration with, any court or governmental or regulatory agency or body of the United States or the State of New York or the General Corporation Law of the State of Delaware is required for the execution and delivery by the Issuers of this Agreement, the Registration Rights Agreement or the Indenture or for the issue and sale of the Securities, the Exchange Securities or the Private Exchange Securities, if any, or the issuance of the Guarantee by BBC or the consummation by the Issuers of any of the transactions contemplated herein (including the other than elements of the financial statements and other financial information contained Recapitalization) or therein, except such as may be required (A) in connection with the registration under the Act of the Securities, the Exchange Securities or the Private Exchange Securities, if any, pursuant to the Registration Rights Agreement, (B) the qualification of the Indenture under the Trust Indenture Act in connection with the registration of the Securities, the Exchange Securities or the Private Exchange Securities, if any, pursuant to the Registration Rights Agreement and (C) under the "blue sky" laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Initial Purchasers (as to which such counsel need express no opinion);
(6) the Final issuance, sale and delivery of the Securities, the Exchange Securities and the Private Exchange Securities, if any, the execution, delivery and performance by the Issuers of this Agreement, the Registration Rights Agreement and the Indenture (in each case assuming due authorization and execution by each party other than BBC), the declaration and payment of the BBC Distribution and the consummation by the Issuers of the transactions contemplated hereby (including each element of the Recapitalization) and thereby and the compliance by the Issuers with the terms of the foregoing do not, and, at the Closing Time, will not, conflict with or constitute or result in a breach or violation by the Issuers or any of the Subsidiaries of (A) any provision of the Certificate of Incorporation or By-laws of BBC, (B) any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) by the Issuers, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuers under any material agreements or instruments known to such counsel or (C) any law, statute, rule, or regulation of the United States or the State of New York or under the General Corporation Law of the State of Delaware or any order, decree or judgment known to such counsel to be applicable to the Issuers, of any court or governmental or regulatory agency or body or arbitrator in the United States or the States of New York or Delaware.
(7) the statements in the Offering Memorandum under the headings "Summary - The Offering," "Description of the Notes" and "Exchange Offer; Registration Rights," insofar as such statements purport to summarize certain provisions of the Securities, the Exchange Securities, the Registration Rights Agreement and the Indenture provide a fair summary of such provisions of such agreements and instruments and are complete in all material respects;
(8) all descriptions in the Offering Memorandum of Contracts and other documents to which the Company or the Subsidiaries are a party are accurate and complete in all material respects;
(9) each of the Indenture and the Registration Rights Agreement (assuming due authorization and execution by each party thereto other than BBC) constitutes a valid and binding agreement of the Issuers, enforceable against the Issuers in accordance with its terms, except (a) with respect to the Indenture and the Registration Rights Agreement, the Enforceability Limitations, and (b) with respect to the Registration Rights Agreement, that such counsel expresses no opinion regarding the enforceability of the indemnification provisions contained in Section 4 thereof;
(10) each of the Securities, when executed and authenticated in accordance with the provisions of the Indenture and delivered and paid for in accordance with the terms of this Agreement, and the Exchange Securities and the Private Exchange Securities, if any, when executed, authenticated and delivered in exchange for the Securities in accordance with the terms of the Registration Rights Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Issuers, enforceable in accordance with its terms except as the enforceability thereof may be limited by the Enforceability Limitations;
(11) the Guarantee, when authenticated, executed and delivered by BBC in accordance with the provisions of the Indenture (assuming the due authentication of the Notes by the Trustee) will be entitled to the benefits of the Indenture and will be a legal, valid and binding obligation of BBC enforceable against BBC in accordance with its terms except as the enforceability thereof may be limited by the Enforceability Limitations;
(12) The Note Repurchase Letters do not conflict with or constitute or result in a breach or violation of any of the terms of the Old Notes Indenture.
(13) to the knowledge of such counsel, other than as described in the Offering Memorandum, no legal, regulatory or governmental proceedings are pending to which any of the Issuers or the Subsidiaries is a party or to which the assets of the Issuers or the Subsidiaries are subject which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or which, individually or in the aggregate, would have a material adverse effect on the power or ability of the Issuers to perform their respective obligations under the Operative Documents or to consummate the transactions contemplated thereby (including the other elements of the Recapitalization) or by the Offering Memorandum and no such material proceedings have been threatened against any of the Issuers or with respect to any of their respective assets or properties;
(14) assuming that the representations and warranties of the Initial Purchasers contained in Section 4 of this Agreement are true, correct and complete, and assuming compliance by the Initial Purchasers with their covenants in Section 4 hereof, and assuming that the representations and warranties contained in the Transferee Letters (substantially in the form of Appendix A to the Offering Memorandum) completed by Accredited Investors and non-U.S. persons purchasing Securities from the Initial Purchasers are true and correct as of its date the Closing Time, and assuming compliance by such Accredited Investors and non-U.S. persons with the agreements in the Transferee Letters, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers under, or in connection with the initial resale of such Securities by the Initial Purchasers in accordance with, this Agreement that would require the Issuers to register the Securities under the Act or to qualify the Indenture under the Trust Indenture Act;
(15) neither Issuer nor any of the Subsidiaries is an "investment company" or a company "controlled by" or required to register as an investment company as such terms are defined in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder; and
(16) when the Securities are issued and delivered pursuant to this Agreement, such Securities will not be of the same class (within the meaning of Rule 144A) as securities of any of the Issuers which are listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclauses (7) and (8) above), on the basis of the foregoing (relying as to materiality to a large extent upon representations and opinions of officers and other representatives of the Issuers), no facts have come to the attention of such counsel which lead such counsel to believe that the Offering Memorandum at the date thereof or as of such opinionthe Closing Time, included contained or includes any contains an untrue statement of a material fact or omitted or omits to state any 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 such counsel need not express any comment with respect to the financial statements, including the notes thereto and supporting schedules, or any other financial or statistical data set forth or referred to in the Offering Memorandum. In rendering such opinions, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal law of the United States and the laws of the States of Delaware and New York, (B) may rely, as to matters of fact, to the extent they deem proper on representations or certificates of responsible officers of the Issuers and certificates of public officials and (C) may rely to the extent they deem proper upon the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ contemplated by subsection (b). References to the Offering Memorandum in this subsection (a) include any supplements thereto at or prior to the Closing Time.
(iib) At the Closing Time, the Initial Purchasers shall have received the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to the Company, dated as of the Closing Time, in the form set forth below and otherwise reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, to the effect that:
(1) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have has been duly organized incorporated and are is validly existing as corporations in good standing under the laws of their respective jurisdictions the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiariesGeorgia, taken as a whole; the Company and each of its significant subsidiaries have full with corporate power and authority to own, lease and operate their respective its assets and properties and assets and conduct their respective businesses its business as described in the Final Memorandum, Offering Memorandum and the Company has corporate power to enter into and perform its obligations under this Agreement, the Registration Rights Agreement and the Indenture other Operative Documents; the Company is duly qualified as a foreign corporation to transact business and to carry out all the terms and provisions hereof and thereof and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the Notes ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be carried out by it; in good standing would not result in a Material Adverse Effect;
(2) all of the authorized, issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except Company is owned by BBC as otherwise set forth in the Final Memorandum, are owned beneficially by Offering Memorandum under the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentscaption "Capitalization";
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii3) the Company has all the requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the NotesSecurities, the Exchange Notes Securities, the Private Exchange Securities and the Indenture and to consummate each other element of the Recapitalization to which it is a party; and each of this Agreement, the Registration Rights Agreement, the Securities, the Exchange Securities, the Private Exchange Securities and the Indenture has been duly authorized by the Company; the Company has the requisite corporate power and authority to issue and deliver the Securities, the Exchange Securities and the Private Exchange NotesSecurities; and the Securities, the issuance, offering Exchange Securities and sale of the Notes to the Initial Purchasers Private Exchange Securities have been duly authorized by the Company pursuant for issuance; and each other element of the Recapitalization to this Agreement, which the compliance Company is a party has been duly authorized by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not Company;
(x4) require the no consent, approval, authorization, registration license, qualification or qualification order of or with filing or registration with, any court or governmental authorityor regulatory agency or body of the State of Georgia is required for the execution and delivery by the Company of this Agreement, the Registration Rights Agreement or the Indenture or for the issue and sale of the Securities, the Exchange Securities or the Private Exchange Securities, if any, or the consummation by the Company of any of the transactions contemplated herein (including the other elements of the Recapitalization) or therein, except such as have been obtained or made (and specified in such opinion) or such as may be required by under the securities or Blue Sky "blue sky" laws of the various states of the United States of America and other U.S. jurisdictions any jurisdiction in connection with the offer purchase and sale distribution of the Notes Securities by the Initial Purchasers (as to which such counsel need express no opinion);
(5) the issuance, sale and except those that may be required delivery of the Securities, the Exchange Securities and the Private Exchange Securities, if any, the execution, delivery and performance by the Act or the TIA in connection with the exchange offer contemplated by Company of this Agreement, the Registration Rights AgreementAgreement and the Indenture (in each case assuming due authorization and execution by each party other than the Company), or the declaration and payment of the Blue Bird Dividend and the consummation by the Issuers of the transactions contemplated hereby (yincluding the other elements of the Recapitalization) and thereby and the compliance by the Issuers with the terms of the foregoing do not, and, at the Closing Time, will not, conflict with or constitute or result in a breach or violation of by the Issuers or any of the terms and provisions of, Subsidiaries of (A) any provision of the Certificate of Incorporation or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or byBy-laws of the Company Company, (B) any law, statute, rule, or regulation of the State of Georgia or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule decree or regulation judgment known to such counsel to be applicable to the Issuers, of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company regulatory agency or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.bo
Appears in 1 contract
Sources: Purchase Agreement (Blue Bird Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, discovered and disclosed to the effect that:
(i) Company prior to or on such counsel has no reason to believe Delivery Date that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or the date of such opinion, included any amendment or includes supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material fact or omitted or omits to state any fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and each of its “significant subsidiaries” information that they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇▇ Godward LLP shall have furnished to the Initial Purchasers their written opinion, as defined counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in Rule 1.02(wform and substance satisfactory to the Initial Purchasers, to the effect that:
(i) of Regulation S-X under the Exchange Act) have The Company has been duly organized and are is validly existing as corporations a corporation in good standing under the laws of their respective jurisdictions the State of incorporation and are Delaware, and, based solely on certificates of public officials, is duly qualified to transact do business as foreign corporations and are is in good standing under as a foreign corporation in each jurisdiction in which its ownership or lease of property or the laws conduct of all other jurisdictions its business requires such qualification, except where such counsel has been advised that the failure to be so qualified would amount to not have a material liability adverse effect on the Company, whether or disability to not arising in the Company ordinary course of business, and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full has all corporate power and authority necessary to own, lease and operate their respective own or hold its properties and assets and conduct their respective the businesses in which it is engaged, as described in the Final Offering Memorandum; and, and to the knowledge of such counsel, the Company has no subsidiaries;
(ii) the Conversion Shares, which are authorized on the date hereof, have been duly and validly authorized and reserved for issuance upon conversion of the Notes by all necessary corporate power action and are free of preemptive rights; all Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable and free and clear of all liens, encumbrances, equities or claims imposed by or arising from actions of the Company;
(iii) The statements in the Offering Memorandum under the captions "Description of the Notes" and "Description of Capital Stock", insofar as they purport to enter into summarize the provisions of the Indenture, the Registration Rights Agreement, the Notes and the Common Stock (including the Conversion Shares) are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act;
(iv) There is no restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's certificate of incorporation or bylaws;
(v) To the knowledge of such counsel and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company is a party or of which any property or asset of the Company is the subject which, if determined adversely to the Company might have a material adverse effect on the Company or which might reasonably be expected to materially and adversely affect the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder; to the actual knowledge of such counsel, no such proceedings are overtly threatened or contemplated by governmental authorities or, except as set forth or contemplated in the Offering Memorandum, overtly threatened by others; and, to the actual knowledge of such counsel, the aggregate of all pending legal or governmental proceedings to which the Company is a party or of which any of its property or assets is the subject (other than the Company's patent applications currently pending before the U.S. Patent and Trademark Office or before any foreign governmental authority that administers the registration of patents) which are not described in the Offering Memorandum, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a material adverse effect on the Company.
(vi) The execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions issuance of the Notes and the Indenture, provide a fair summary of such provisions; Conversion Shares and the statements set forth consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificate of incorporation or bylaws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties or assets; and, except as may be required by the securities or "blue sky" laws of any state of the United States in connection with the sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company and the issuance of the Notes and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby;
(vii) No registration of the Notes or the Conversion Shares under the heading “Securities Act, and no qualification of the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Notes or in connection with the conversion of the Notes into Conversion Shares, in each case, in the manner contemplated by the Offering Memorandum, this Agreement and the Indenture;
(viii) The statements in the Offering Memorandum under the caption "Certain United States Federal Income Tax Consequences” in the Final MemorandumConsiderations", insofar as such statements they purport to constitute a summary summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material respects as would be to the extent required to be disclosed if such statements were contained in a prospectus pursuant to registration statement on Form S-3 under the Act and the Exchange Act and the respective rules and regulations thereunderSecurities Act;
(ivix) The Company is not an "investment company" within the execution and delivery meaning of this Agreement have been duly authorized by the Investment Company Act of 1940, as amended;
(x) The Company has all necessary corporate action right, power and authority to execute and deliver each of the Company Operative Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Notes and the Conversion Shares to the Initial Purchasers;
(xi) This Agreement has been duly authorized, executed and delivered by the Company;
(vxii) the execution and delivery of the The Indenture have has been duly authorized by the Company andauthorized, when duly executed and delivered by the Company (and, assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be constitutes a legal, legally valid and binding agreement of the Company, Company enforceable against the Company in accordance with its terms (subjectexcept as the enforceability thereof may be limited by bankruptcy, as to enforcement of remediesinsolvency, to applicable bankruptcyfraudulent transfer, reorganization, insolvency, moratorium and other similar laws relating to or other laws affecting creditors’ ' rights generally from time generally, subject to time general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in effect). The Indenture meets the requirements for qualification under the TIA.a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing;
(vixiii) the Notes have The Registration Rights Agreement has been duly authorized by all necessary corporate action of the Company andauthorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be constitutes a legal, valid and legally binding agreement of the Company, Company enforceable against the Company in accordance with its terms (subject, except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), by an implied covenant of good faith and fair dealing; and
(xiv) The Notes have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and the Delaware General Corporation Law and may state securities laws that it is relying, in respect of matters of New York law, upon Brown & Wood LLP, and in respect of matters of fact, upon certificates of officers of the Company, PROVIDED that such counsel shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with officers and other representatives of the Company, the Company's independent public policy considerationsaccountants, the Initial Purchasers and their counsel, at which the contents of the Offering Memorandum were discussed, and while such counsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (other than the financial statements, financial and statistical data and supporting schedules as to which such counsel shall make no statement), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ixd) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel and Secretary of the execution Company, shall have furnished to the Initial Purchasers his written opinion, addressed to the Initial Purchasers and delivery by dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that:
(i) The authorized, issued and outstanding capital stock of the Company, as of June 30, 2000, is as set forth in the Offering Memorandum under the column entitled "Actual" under the caption "Capitalization", and 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 nonassessable;
(ii) Except as disclosed in the Offering Memorandum, there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, and the performance by any shares of Common Stock pursuant to any agreement or other instrument to which the Company is a party known to such counsel; the issuance of its obligations underthe Conversion Shares, upon conversion of the Notes in accordance with the terms of the Indenture, will not be subject to the preemptive or other similar rights of any securityholder of the Company and
(iii) The execution, delivery and performance of this Agreement, the Registration Rights Agreement, the Indenture and the Notes, Registration Rights Agreement and the Exchange issuance of the Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Conversion Shares and the consummation of the other transactions herein contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease loan agreement or other material agreement or instrument, instrument known to such counsel, counsel to which the Company or any of its significant subsidiaries is a party or by which the Company is bound or to which any of its significant subsidiaries the property or any of their respective properties are bound, or the charter documents or by-laws assets of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such is subject. Such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes shall also have furnished to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreementa written statement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes addressed to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any dated such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that he has no reason to believe that the statements under the captions "Risk Factors--Our patents may not protect our products and our products may infringe on third-party patent rights" and "Patents and Proprietary Rights" in the Offering Memorandum, as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(e) Brown & Wood LLP, shall have furnished to the Initial Purchasers their written opinion, as counsel for to the Initial Purchasers, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers.
(df) With respect to the letter of ▇▇▇▇▇ & Young LLP delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished or caused to be furnished to the Initial Purchasers at on such Delivery Date a certificate, dated such Delivery Date and delivered on behalf of the Closing a certificate Company by one of its Chairman of the Board, its President or its Chief Executive Officer co-chief executive officers and its Chief Financial Officer chief financial officer, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect that:
(i) the representations The representations, warranties and warranties agreements of the Company in this Agreement Section 1 are true and correct as if made on of the date given and as of the Closing such Delivery Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory complied in all material respects with all its agreements contained herein to the Initial Purchasers and counsel for the Initial Purchasers. be performed prior to or on such Delivery Date;
(A) The Company shall furnish to has not sustained since the Initial Purchasers such conformed copies date of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.latest audited
Appears in 1 contract
Sources: Purchase Agreement (Inhale Therapeutic Systems Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in on the Initial Purchasers’ sole discretion, Closing Date is subject to the accuracy accuracy, as of the Closing Date, of the representations and warranties of the Company LNR contained herein as of the date hereof herein, and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company LNR of its covenants and agreements obligations hereunder and to the following additional conditions:conditions (any of which may be waived in writing by the Initial Purchaser):
(a) On the Closing Date, Date the Initial Purchasers Purchaser shall have received a legal opinion from the opinions, dated as of the Closing Date and addressed to the Initial Purchaser (and stating that it may be relied upon by counsel to the Initial Purchaser), of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for LNR, and Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP, special counsel to certain Designated Subsidiaries and the CompanyLand Partnership, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchaser, to the effect that:
(i) such counsel has no reason to believe that (other than Each of LNR, the financial statements Designated Subsidiaries and other financial information contained thereinthe Land Partnerships is duly organized, validly existing and, as to which such counsel need express no opinion) LNR and the Final MemorandumDesignated Subsidiaries that are corporations, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of organization and, has all requisite corporate or other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final Memorandum. Each of LNR, the Designated Subsidiaries and the Company Land Partnerships is duly qualified to do business and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification and where LNR has corporate power to enter into this Agreement, informed such counsel the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes failure to be carried out by itso qualified would, individually or in the aggregate, have a Material Adverse Effect.
(ii) LNR has the authorized capital stock as set forth under "Capitalization" in the Memorandum; all of the outstanding shares of Common Stock and Class B Common Stock of LNR and the capital stock of each Designated Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and were not issued and in violation of any preemptive or similar rights; all of the outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, Designated Subsidiaries are owned beneficially by the Company LNR or another Subsidiary, insofar as such counsel is aware, free and clear of any perfected security interests or, all liens (other than those created pursuant to the best knowledge Credit Agreement), encumbrances, equities and claims or restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of certain jurisdictions) or voting; LNR indirectly owns a 50% interest in each Land Partnership; such counselinterest in each Land Partnership has been duly authorized and validly issued and is, any other security interestsinsofar as such counsel is aware, free and clear of all liens, encumbrances, equities or and claims, except for pledges of subsidiary stock under debt instruments;.
(iii) the statements Insofar as such counsel is aware, except as set forth under the heading “Description of Notes” in the Final Memorandum or in a document incorporated by reference into the Memorandum, insofar as (A) there are no outstanding options, warrants or other rights to purchase from LNR or any Designated Subsidiary or either Land Partnership shares of capital stock or ownership interests in LNR or any Designated Subsidiary or ownership interests in either Land Partnership, (B) other than LNR's Class B Common Stock, there are no outstanding agreements or other obligations of LNR or any Designated Subsidiary to issue, or other rights to cause LNR or any Designated Subsidiary or either Land Partnership to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in LNR or any Designated Subsidiary or ownership interests in either Land Partnership and (C) no holder of securities of LNR or any Designated Subsidiary (other than the Notes) is entitled to have such statements purport to summarize certain provisions of the Notes and the Indenture, provide securities registered under a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed registration statement filed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;LNR.
(iv) LNR has all requisite corporate power and authority to execute, deliver and perform its obligations under the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of Notes, the Company Exchange Notes, the Private Exchange Notes, the Indenture and the Agreement Registration Rights Agreement.
(v) The Indenture is in sufficient form for qualification under the Trust Indenture Act; the Indenture has been duly and validly authorized, executed and delivered by the Company;
(v) the execution LNR, and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof of the Indenture by the Trustee), ) constitutes the Indenture will be a legal, valid and legally binding agreement of the CompanyLNR, enforceable against the Company LNR in accordance with its terms terms, except to the extent that the enforcement thereof may be affected by (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta proceeding in equity or at law). The Indenture meets the requirements for qualification under the TIA.
(vi) The Notes are in the form contemplated by the Indenture. The Notes have each been duly authorized by all necessary corporate action of the Company andand validly authorized, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company LNR and, when paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the TrusteeTrustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of the CompanyLNR, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder , and enforceable against LNR in accordance with their terms, except to the extent that the enforcement thereof may be affected by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of securities equity and the discretion of the Company has court before which any right which has not been fully exercised proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;at law).
(vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, LNR and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by LNR, the Company in accordance with the terms of exchange transactions described in, or as otherwise contemplated by the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the legal, valid and legally binding obligations of LNR, entitled to the Companybenefits of the Indenture, and enforceable against LNR in accordance with their terms terms, except to the extent that the enforcement thereof may be affected by (subjecti) bankruptcy, as to enforcement of remedies, to applicable bankruptcyinsolvency, reorganization, insolvencyfraudulent conveyance, moratorium or other similar laws affecting now or hereafter in effect relating to creditors’ ' rights generally from time to time and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in effecta proceeding in equity or at law).
(viii) The Registration Rights Agreement has been duly and validly authorized, executed and delivered by LNR, and (assuming due authorization, execution and delivery thereof by the Company Initial Purchaser) constitutes the valid and legally binding agreement of LNR enforceable against LNR in accordance with its terms, except to the extent that (A) the enforcement thereof may be affected by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal or state securities laws or public policy considerations.
(ix) LNR has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the Registration Rights Agreementtransactions contemplated hereby; this Agreement and the Registration Rights consummation by LNR of the transactions contemplated hereby have been duly and validly authorized by LNR. This Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations)LNR.
(ixx) The Indenture, the execution Notes and delivery the Registration Rights Agreement conform as to legal matters in all material respects to the descriptions thereof contained or incorporated by reference in the Company ofMemorandum.
(xi) Insofar as such counsel is aware there are (i) no legal or governmental proceedings pending or threatened to which LNR or any Designated Subsidiary or either Land Partnership is a party or to which the property or assets of LNR or any Designated Subsidiary or either Land Partnership is subject which would be required under the Act to be described in a registration statement under the Act or in a prospectus meeting the requirements of Section 10 of the Act, and are not described in the performance Memorandum, or which seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Memorandum and (ii) no contracts, agreements or other documents to which LNR or any Designated Subsidiary or either Land Partnership is a party which would be required under the Act to be described in a registration statement or prospectus and are not described in the Memorandum. The descriptions contained or incorporated by reference in the Company Memorandum of its obligations under, this the Credit Agreement, the Registration Rights partnership agreements of each of the Land Partnerships, the separation and distribution agreement relating to the spin-off of LNR and the By-Laws of LNR are accurate in all material respects and fairly summarize the provisions of such agreements and documents which they purport to summarize.
(xii) Insofar as such counsel is aware, neither LNR nor any Designated Subsidiary is in violation of its certificate of incorporation or bylaws or other comparable organizational documents and neither Land Partnership is in violation of the partnership agreement under which it was formed.
(xiii) The execution, delivery and performance of this Agreement, the Indenture and the NotesRegistration Rights Agreement, and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the Exchange Notes and the Private Exchange Notes, the issuance, offering issuance and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Purchaser) and the consummation of the other transactions herein contemplated do Debt Tender Offer will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a lien on any property or assets of LNR or any Subsidiary or Investment Affiliate with respect to (i) the terms or provisions of any of the terms and or provisions ofof any material contract, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to instrument of which such counsel, counsel is aware to which the Company LNR or any of its significant subsidiaries Designated Subsidiary or either Land Partnership is a party or by which the Company LNR or any Designated Subsidiary or either Land Partnership may be bound, (ii) the certificate of its significant subsidiaries incorporation or bylaws or other comparable organizational documents of LNR or any Designated Subsidiary or the partnership agreement of their respective properties are boundeither Land Partnership, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the charter documents or by-laws accuracy of the Company or representations and warranties of the Initial Purchaser in Section 8 hereof) any of its significant subsidiariesstatute, or any statute or any judgment, decree, order, rule or regulation generally applicable to transactions of any court the type contemplated by the Memorandum or other governmental authority or any arbitrator known to such counsel and to be applicable to the Company LNR or its significant subsidiaries;any Designated Subsidiary or either Land Partnership.
(xxiv) No consent, approval, authorization or order of any governmental authority is required for the Company is not an “investment company” and, after giving effect to the Offering issuance and sale by LNR of the Notes to the Initial Purchaser, or the other transactions contemplated in this Agreement or the consummation of the Debt Tender Offer, except (i) as may be required under applicable securities laws in connection with the registration under the Act of the Notes, and the Private Exchange Notes, if applicable, pursuant to the Registration Rights Agreement and (ii) as may be required under state securities or blue sky laws (as to which such counsel need express no opinion).
(xv) Neither LNR nor any of its subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds therefromfrom such sale (as described in the Memorandum under the caption "Use of Proceeds") will be, will not be an “"investment company”, " as such term is defined in the 1940 Investment Company Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which , and the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumrules and regulations thereunder.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiiixvi) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIATrust Indenture Act, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers Qualified Institutional Buyers or Accredited Investors, as those terms are defined in Rule 144A promulgated the rules under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation SAct, (ii) the accuracy of the Initial Purchasers’ Purchaser's representations in Section 8 and those of the Company LNR contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereofhereof and the offering and transfer procedures set forth in the Memorandum.
(xvii) Neither the sale, issuance, execution or delivery of the Notes nor any other transaction contemplated by this Agreement will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
(xviii) The statements under the captions "Description of the Notes," "Exchange Offer; Registration Rights" and "Notice to Investors; Transfer Restrictions" in the Memorandum or incorporated therein by reference, insofar as such statements constitute a summary of the documents referred to therein or matters of law, provide a fair and accurate summary in all material respects of the information called for with respect to such documents and matters under current law. At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇▇ Chance US LLP shall additionally state that it has participated in conferences with officers and other representatives of LNR, representatives of the independent public accountants for LNR, representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which conferences the contents of the Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Memorandum (except to the extent specified in subsection 7(a)(xviii)), no facts have come to its attention which lead it to believe that the Memorandum, on the date thereof or at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (it being understood that such firm need express no belief with respect to the financial statements and related notes thereto and the other financial or statistical data included in the Memorandum). In rendering any such its opinion, such counsel ▇▇▇▇▇▇▇▇ Chance US LLP may rely, state that they express no opinion as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York or the United States or and the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers Purchaser shall have received a legal opinion from an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing DatePurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.m
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Firm Notes shall, shall be subject, in the Initial Purchasers’ sole discretion, subject to the accuracy of the representations and warranties made herein on the part of the Company, to the performance by the Company of its obligations to be performed hereunder prior to the Firm Closing Date, and to the following conditions:
(a) On the Firm Closing Date, the Initial Purchasers shall have received from Eric H. Peterson, Executive Vice Pre▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇al Counsel of TXU Corp., Hunton & Williams LLP, counsel for the Compan▇, Thelen Reid & Priest LLP, counsel fo▇ ▇▇▇ ▇▇▇▇▇ny, and Pillsbury Winthrop LLP, counsel for the Initial Purchasers, opinions in substantially the form and substance prescribed in Schedules II, III, IV and V hereto with such changes therein as may be agreed upon by the Company and the Representative on behalf of the Initial Purchasers, with the approval of counsel for the Initial Purchasers.
(b) On and as of the Firm Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP a letter to the effect that (i) they are independent certified public accountants with respect to the Company, within the meaning of the Securities Act and the applicable published rules and regulations thereunder, (ii) in their opinion, except as stated in the Offering Memorandum, the consolidated financial statements audited by them and included or incorporated by reference in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related rules and regulations by the SEC thereunder, (iii) on the basis of a reading of the unaudited amounts of operating revenues and net income included or incorporated by reference in the Offering Memorandum and the related consolidated financial statements from which these amounts were derived, the latest available unaudited consolidated financial statements of the Company and the minute books of the Company and inquiries of officers of the Company and of certain direct and indirect subsidiaries of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the several Initial Purchasers' purposes), nothing has come to their attention which caused them to believe that (A) any material modifications should be made to the unaudited condensed consolidated financial statements of the Company included in the quarterly report, incorporated by reference in the Offering Memorandum, for them to be in conformity with generally accepted accounting principles, (B) the unaudited condensed consolidated financial statements included in the quarterly report do not conform in all material respects with the applicable accounting requirements of the Exchange Act and the related rules and regulations adopted by the SEC and (C) at a specified date not more than five days prior to the date of such letter, there was any change in the capital stock (which includes common stock and preference stock) of the Company, short-term bank loans, commercial paper, long term debt or long-term debt due currently of the Company or decrease in its net assets (excluding changes due to Other Comprehensive Income), in each case as compared with amounts shown in the most recent consolidated balance sheets of the Company incorporated by reference in the Offering Memorandum, except in all instances for changes or decreases that the Offering Memorandum discloses have occurred or may occur or which are occasioned by the acquisition of long-term debt for sinking fund purposes, or which are described in such letter, and (iv) they have compared the dollar amounts (or percentages or ratios derived from such dollar amounts) and other financial information included or incorporated by reference in the Offering Memorandum as reasonably requested by the Initial Purchasers (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its consolidated subsidiaries subject to the internal controls of the accounting system of such companies or are derived indirectly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter.
(c) Since the most recent dates as of which information is given in the Offering Memorandum, there shall not have been any material adverse change in the business, property or financial condition of the Company and its subsidiaries, considered as a whole, whether or not in the ordinary course of business, and, since such dates, there shall not have been any material transaction entered into by any of the Company and the Material Subsidiaries, in each case other than transactions in the ordinary course of business and transactions contemplated by the Offering Memorandum, and at the Firm Closing Date the Initial Purchasers shall have received a certificate to such effect dated the Firm Closing Date and signed by an officer of the Company.
(d) All opinions, certificates, letters and documents to be provided in connection with the issuance and sale of the Firm Notes as provided herein, including the Registration Rights Agreement, shall be satisfactory in form and substance to counsel for the Initial Purchasers.
(e) At the Firm Closing Date, (i) the Notes shall be rated at least Ba1 by Moody's Investors Service, Inc. ("Mo▇▇▇'▇") and BBB- by Standard & Poor's, a division of the McGraw Hill Companies, Inc. ("S&P"), and the Company shall have delivered to the Initial Purchasers a letter from each such rating agency, or other evidence satisfactory to the Representative on behalf of the Initial Purchasers, confirming that the Notes have such ratings, and (ii) neither Moody's nor S&P shall have, since the date of this Agreement, downgraded or publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Notes or any securities of the Company which are of the same class as the Notes, or of the financial condition of the Company.
(f) At the Firm Closing Date, the Shares issuable upon conversion of the Notes shall have been approved for listing on the New York, Chicago and Pacific stock exchanges upon notice of issuance.
(g) In the event that the Underwriters exercise the option provided in Section 3(b) hereof to purchase all or any portion of the Option Notes, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company hereunder shall be true and correct as of the date hereof of, and as of each if made on, the applicable Option Closing Date, as if made on and as of each at the applicable Option Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) the Underwriters shall have received a certificate, dated such counsel has no reason to believe that (other than the financial statements and other financial information contained thereinOption Closing Date, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light an officer of the circumstances under which they were madeCompany confirming that the certificate delivered at the Firm Closing Date pursuant to Section 8(c) hereof is true and correct as of, not misleading.and as if made on, such Option Closing Date;
(ii) the Company and each Underwriters shall have received the favorable opinions of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiariesEric H. Peterson, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇Hunton & Williams ▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇ & Priest L▇▇▇ & ▇▇▇, ▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP tance satisfactory to Counsel for the Initial Purchasers, and of Pillsbury Winthrop LLP, each dated such Option Closing Date, each relating to the Option Notes and otherwise to the same effect as the opinions required by Section 8(a) hereof;
(iii) the Underwriters shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Datefrom Deloitte & Touche LLP, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be Purchasers and dated such Option Closing Date, substantially the same in form and substance as the letter furnished to the Initial Purchasers at pursuant to Section 8(b) hereof, except that the Closing "specified date" in the letter furnished pursuant to this Section 8(g)(iii) shall be a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or date not more than five days prior to the such Option Closing Date; and
(iiA) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)Notes shall be rated at least Ba1 by Moody's and BBB- by S&P, neither and the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for a letter from each such rating agency, or other evidence satisfactory to the Representative on behalf of the Initial Purchasers, confirming that the Notes have such ratings, and (B) neither Moody's nor S&P shall have, since the date of this Agreement, downgraded or publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Notes or any securities of the Company which are of the same class as the Notes, or of the financial condition of the Company. The Company failure of one or more conditions, specified in this Section 8, shall furnish to permit the termination of this Agreement by the Representative on behalf of the Initial Purchasers upon notice thereof to the Company. Any such conformed copies termination shall be without liability of such opinions, certificates, letters, any party to any other party except as otherwise provided in Sections 6(f) and documents in such quantities as the Initial Purchasers shall reasonably request9 hereof.
Appears in 1 contract
Sources: Purchase Agreement (Txu Corp /Tx/)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes Securities shall, be subject, in the Initial Purchasers’ its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇▇▇▇ Chance US LLP▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, in form and substance satisfactory for counsel to the Initial Purchaser, dated the Closing Date, substantially to the effect that:
(i) such counsel The Company has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are incorporated, is validly existing as corporations and is in good standing as a corporation under the laws of their respective jurisdictions the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of Delaware, with all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate their respective own its properties and assets and conduct their respective businesses its business as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except .
(ii) Except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, there are no outstanding (i) options, warrants or other rights to purchase from the Company, (ii) agreements or other obligations of the Company to issue or (iii) other rights to convert any obligation into, or exchange any securities for, shares of capital stock of, or other security interestsequity securities of, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;the Company.
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; Notes. The Notes are in the Registration Rights Agreement has form contemplated by the Indenture. The Notes have been duly and validly authorized by the Company and, and when duly executed and delivered -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture (assuming due authorization, execution and delivery thereof of the Indenture by the Trustee) and paid for by the Initial PurchasersPurchaser in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Company, will entitle the holders to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, indemnity and contribution or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), will be and except that such counsel need not express any opinion as to the enforceability of the waiver as to ▇▇▇▇▇, extension or stay laws.
(iv) The Global Note (as such term is defined in the Indenture) is in the form contemplated by the Indenture.
(v) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture meets the requirements for qualification under the TIA. The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a legal, valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms (subjectassuming due authorization, execution and delivery thereof by the Trustee), except as to enforcement of remediesthe enforceability thereof may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, fraudulent conveyance, moratorium, indemnity and contribution or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and except that such counsel need not express any opinion as to the enforceability of the waiver as to ▇▇▇▇▇, extension or stay laws.
(vi) The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes have been duly executed and delivered by the Company and authenticated by the Trustee in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming due authorization, execution and delivery of the Indenture by the Trustee), will constitute the valid and legally binding obligations of the Company, will entitle the holder to the benefits of the Indenture, and will be enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors’ ' rights generally from time to time and by general -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- equitable principles (regardless of whether the issue of enforceability is considered in effect a proceeding in equity or at law), and except that such counsel need not express any rights opinion as to indemnity the enforceability of the waiver as to usury extension or contribution thereunder stay laws.
(vii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under each of the Registration Rights Agreement, Warrant Registration Rights Agreement, the Unit Agreement and the Warrant Agreement. Each of such agreements has been duly and validly authorized, executed and delivered by the Company and (assuming the due authorization, execution and delivery thereof by each of the other parties thereto) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and subject to the limitations of federal and state securities laws and public policy considerationsconsiderations as to any rights to indemnity or contribution thereunder, and subject further to the fact that provisions for liquidated damages may be unenforceable if they were deemed to constitute a penalty.
(viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under each of the Security Documents. Each of the Security Documents has been duly and validly authorized, executed and delivered by the Company and (assuming the due authorization, execution and delivery thereof by each of the other parties thereto) constitutes a valid and legally binding agreement of the Company enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), including without limitation, concepts of materiality, reasonableness, good faith and fair dealing.
(ix) the execution The Units have been duly authorized, executed, issued and delivery delivered by the Company ofand constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- enforceability is considered in a proceeding in equity or at law).
(x) The Warrants have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law).
(xi) The Warrant Shares have been duly and validly authorized and validly reserved for issuance, and when issued and paid for upon exercise of the Warrants in accordance with the terms thereof, will be validly issued, fully paid, nonassessable, free of preemptive rights as a matter of the United States federal laws, the Delaware General Corporation Law or the New York Business Corporation Law, and to such counsel's knowledge, free of all other preemptive rights.
(xii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly authorized by all necessary corporate action, and has been duly executed and delivered by the Company.
(xiii) No consent, approval, authorization or order of any United States federal, New York state or Delaware state court or govern- mental agency or body is required under applicable law or, to the knowledge of such counsel under any United States federal, New York state or Delaware state court decree, order or regulatory decision for the execution, delivery or performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture Warrant Registration Rights Agreement, the Unit Agreement, the Warrant Agreement, the Indenture, the Securities and the Notes, Security Documents or the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers consummation by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require hereby or thereby that are to be completed prior or on the consent, approval, authorization, registration or qualification of or with any governmental authoritydate hereof, except such as have been obtained or made (disclosed in the Final Memorandum and specified in such opinion) or such as may be required by the under state securities or "Blue Sky Sky" laws as to which such counsel need not express any opinion. The Company is not (i) in violation of the various states its certificate of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act incorporation or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, bylaws (or similar organizational document) or (yii) conflict with or result in a breach or violation of any of the terms and provisions ofstatute, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation (of which such counsel is aware) applicable to any court or other governmental authority of them or any arbitrator of their respective properties or assets, except such violations or breaches that would not, individually or in the aggregate, have a Material Adverse Effect. -------------------------------------------------------------------------------- --------------------------------------------------------------------------------
(xiv) The execution, delivery and performance by the Company of this Agreement, the Indenture, the Registration Rights Agreement, Warrant Registration Rights Agreement, the Unit Agreement, the Warrant Agreement, the Security Documents, and the consummation by the Company of the transactions contemplated hereby and thereby, and the fulfillment of the terms hereof and thereof, will not conflict with or constitute or result in a breach of or a default under (or an event which with notice or passage of time or both would constitute a default under) any material contract known to such counsel and applicable us to the Company or its significant subsidiaries;
(x) which the Company is not an “investment company” and, after giving effect a party or to the Offering which any of its assets is subject or a violation of any of the Notes and the application certificate of incorporation or by-laws (or similar organizational document) of the proceeds therefromCompany, will not be an “investment company”or (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of representations and warranties of the Initial Purchaser in Section 8 of the Purchase Agreement) violate any statute, as such term is defined in the 1940 Act; and
judgment, decree, order, rule or regulation (xi) of which such counsel does not know of any legal or governmental proceedings pending or threatened is aware) applicable to which the Company or any of its subsidiaries properties or assets except for any such conflicts, breaches, defaults or violations that would not, individually or in the aggregate, have a Material Adverse Effect.
(xv) To the knowledge of such counsel, there is not pending or threatened, any action, suit, proceeding, inquiry, investigation or legislative mandate to which the Company is a party or to which the property or assets of the Company is subject, before or brought by any of its subsidiaries is subject that court, arbitrator or governmental agency or body which are reasonably likely to, individually or in the aggregate, have a Material Adverse Effect and would otherwise be required to be described in a prospectus pursuant that is subject to Item 103 of Regulation S-K under the Securities Act that are or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder.
(xvi) Neither the consummation of the transactions contemplated by this Purchase Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
(xvii) The Company is not nor immediately after the sale of the Securities to be sold hereunder and the application of the proceeds from such sale (as described in the Final Memorandum or any statutesunder the caption "Use of Proceeds") will it be an "investment company" as such term is defined in the Investment Company Act of 1940, regulationsas amended, contracts or other documents that would be required to be described in a prospectus pursuant to and the Act that are not described or incorporated rules and regulations thereunder.
(xviii) The Notes satisfy the eligibility requirements of Rule 144A(d)(3) under the Act. -------------------------------------------------------------------------------- --------------------------------------------------------------------------------
(xix) The statements in the Final Memorandum.Memorandum under the caption "Description of Capital Stock", "Description of Units," "Description of Notes", "Description of Warrants" and "Exchange Offer and Registration Rights," and the description in the Final Memorandum of the Company's agreement with Southland Corporation, insofar as they describe the provisions of the documents and instruments therein described, constitute fair summaries thereof in all material respects;
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiiixx) No registration under the Act of the Notes Securities is required in connection with the sale of the Notes Securities to the Initial Purchasers Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes Securities by the Initial Purchasers Purchaser in accordance with Section 8 of this Agreement, Agreement and otherwise in the manner contemplated by this Agreement and the Final Memorandum; and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or accredited investors as defined in Rule 501(a) (1), (2), (3) or (B7) that promulgated under the offer or sale of the Notes is made in an offshore transaction as defined in Regulation SAct ("Accredited Investors"), (ii) the accuracy of the Initial Purchasers’ Purchaser's representations in Section 8 hereof and those of the Company contained in this Agreement regarding the absence of a general solicitation or general advertising in connection with the sale of such Notes Securities to the Initial Purchasers Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters .
(xxi) The provisions of fact, the Security Agreement create in favor of the Collateral Agent a valid security interest in and to the extent such counsel deems proper, on certificates of responsible officers Collateral to which Article 9 of the Company and public officials and, Uniform Commercial Code as to matters involving the application of laws of any jurisdiction other than in effect in the State of New York or ("UCC") on the United States or date hereof is applicable (the General Corporation Law "Article 9 Collateral"). When financing statements on Form UCC-1 have been duly filed in the jurisdictions set forth on schedule 2 attached to such opinion, such filings will result in the perfection of the security interests in that portion of the Article 9 Collateral in which security interests are perfected under the UCC in the jurisdictions set forth on schedule 2 attached hereto by the filing of financing statements.
(xxii) The provisions of the Pledge Agreement, together with delivery in the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman New York of the Boardcertificates representing the Pledged Securities, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties would create in favor of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Collateral Agent valid securi
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes Securities shall, be subject, in the Initial Purchasers’ their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties of following conditions on or prior to the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇ & ▇▇▇▇▇ Chance US LLPIncorporated, United States counsel for the CompanyIssuers, dated in form and substance satisfactory to counsel for the Closing DateInitial Purchasers, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained thereinThe Company is duly incorporated, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations and in good standing under the laws of their respective jurisdictions its jurisdiction of incorporation and are has all requisite corporate power and authority to own its properties and to conduct its business as described in the Final Memorandum. The Company is duly qualified to transact do business as a foreign corporations and are corporation in good standing under in each jurisdiction where the laws ownership or leasing of all other jurisdictions its properties or the conduct of its business requires such qualification, except where such counsel has been advised that the failure to be so qualified would amount to not, individually or in the aggregate, have a material liability or disability to Material Adverse Effect.
(ii) As of June 30, 1996, the Company had the authorized, issued and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described outstanding capitalization set forth in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of the Issuers and each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and, with respect to the Company and Western, were not issued in violation of any preemptive or similar rights; all of the outstanding shares of capital stock of Canadian Abraxas and Western will be owned, directly or indirectly, by the Company’s significant subsidiaries, free and clear of all perfected security interests and, to the knowledge of such counsel, free and clear of all other liens, encumbrances, equities and claims or restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of certain jurisdictions) or voting.
(iii) To the knowledge of such counsel, except as otherwise set forth in the Final MemorandumMemorandum (A) no options, are owned beneficially by warrants or other rights to purchase from either Issuer or any of the Company free Subsidiaries shares of capital stock or ownership interests in either Issuer or any of the Subsidiaries were outstanding as of June 30, 1996 other than stock options granted to employees, officers and clear of any perfected security interests ordirectors, (B) no agreements or other obligations to the best knowledge of such counselissue, or other rights to convert, any other security interestsobligation into, liensor exchange any securities for, encumbrances, equities shares of capital stock or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” ownership interests in the Final Memorandum, insofar as such statements purport to summarize certain provisions either Issuer or any of the Notes Subsidiaries were outstanding as of June 30, 1996 other than stock options granted to employees, officers and the Indenture, provide a fair summary directors and (C) no holder of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary securities of either Issuer or any of the legal matters, documents or proceedings referred Subsidiaries is entitled to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in securities registered under a prospectus registration statement filed pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;Registration Rights Agreement.
(iv) The Company has the execution requisite corporate power and delivery of authority to execute, deliver and perform its obligations under this Agreement have been duly authorized by all necessary corporate action and each of the other Operative Documents and to consummate the transactions contemplated hereby and thereby, including, without limitation, the corporate power and authority to issue, sell and deliver the Securities as contemplated by this Agreement. The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under each Operative Document and to consummate the transactions contemplated hereby and thereby.
(v) This Agreement has been duly and validly authorized, executed and delivered by the Company;Company and the Company has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.
(vvi) the execution and delivery of the The Indenture have has been duly and validly authorized by the Company and, when duly executed and delivered by the Company in accordance with its terms (assuming the due authorization, execution and delivery thereof by each of the Trusteeparties thereto other than the Company), the Indenture will be a legal, the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms (subjectterms, except as to enforcement of remediessuch enforceability may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and other similar laws now or other laws hereinafter in effect relating to or affecting creditors’ ' rights generally from time to time generally, by general equitable principles (regardless of whether such enforceability is considered in effect). The a proceeding in equity or at law) or the discretion of the court before which any proceeding therefor may be brought; and the Indenture meets the requirements for qualification under the TIA.
(vivii) the The Notes have been duly and validly authorized by all necessary corporate action of for issuance and sale to the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered Initial Purchasers by the Company pursuant to this Agreement and, assuming due authentication by when issued and authenticated in accordance with the Trusteeterms of the Indenture and delivered against payment therefor in accordance with the terms hereof, will be the legal, legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder , except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereinafter in effect relating to or affecting creditors' rights generally, by general equitable principles (regardless of securities whether such enforceability is considered in a proceeding in equity or at law) or the discretion of the Company has court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;proceeding therefor may be brought.
(viiviii) the Exchange Notes and the Private The Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered for issuance by the Company and, when issued and authenticated in accordance with the terms of the Indenture, the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture)Offer, will be the legal, legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (subjectand entitled to the benefits of the Indenture, except as to enforcement of remediessuch enforceability may be limited by bankruptcy, to applicable bankruptcyinsolvency, reorganization, insolvency, moratorium and other similar laws now or other laws hereinafter in effect relating to or affecting creditors’ ' rights generally from time to time generally, by general equitable principles (regardless of whether such enforceability is considered in effect)a proceeding in equity or at law) or the discretion of the court before which any proceeding therefor may be brought.
(viiiix) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the The Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by each of the Initial Purchasersparties thereto other than the Company), will be a legal, the legally valid and binding agreement obligation of the Company, enforceable against the Company in accordance with its terms (subjectterms, except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereinafter in effect relating to or affecting creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or the discretion of the court before which any proceeding therefor may be brought and, as to rights of indemnification and contribution, by principles of public policy or federal and or state securities laws and public policy considerations)relating thereto.
(ixx) The statements set forth in the execution Final Memorandum under the captions "Business-Regulatory Matters," "Certain United States and delivery by Canadian Income Tax Considerations" and "Certain Anti-takeover Defenses," insofar as they address matters of United States, Texas or Nevada law or legal conclusions based on United States, Texas or Nevada law and subject to the Company oflimitations set forth therein, insofar as such statements constitute a summary of the matters referred to therein, fairly and accurately present the performance by information disclosed therein in all material respects.
(xi) The Indenture, the Company of its obligations underNotes, this Agreementthe Guarantees, the Registration Rights Agreement, the Indenture Agreement and the NotesNew Credit Facility conform in all material respects to the descriptions thereof contained in the Final Memorandum.
(xii) To such counsel's knowledge, no legal or governmental proceedings are pending or threatened to which either of the Exchange Notes and Issuers or any Subsidiary is a party or to which the Private Exchange Notesproperty or assets of either of the Issuers or any Subsidiary is subject, before or brought by any court, arbitrator or government agency or body which, if determined adversely to either of the issuanceIssuers or any Subsidiary, offering and would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes Securities to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and be sold hereunder or the consummation of the other transactions herein contemplated do not described in the Final Memorandum.
(xxiii) require the consentTo such counsel's knowledge, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws none of the various states Issuers or any of the United States Subsidiaries is (A) in violation of America and other U.S. jurisdictions its charter or bylaws (or similar organizational document), (B) in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions ofstatute, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, except for any such breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect, or (C) in breach of or default under (nor has any event occurred which, with notice or passage of time or both, would constitute a default under) or in violation of any court of the terms or provisions of any Contract, except for any such breach, default, violation or event which would not, individually or in the aggregate, have a Material Adverse Effect.
(xiv) The execution, delivery and performance by the Issuers of the Purchase Agreement and each of the other governmental authority Operative Documents (to the extent a party thereto) and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchasers and the issuance of the Exchange Notes in the Exchange Offer), the consummation by the Issuers of the Pending Acquisitions and the execution, delivery and performance by the Company of the New Credit Facility do not conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a Lien on any properties or assets of the Company or any arbitrator Subsidiary with respect to (i) the terms or provisions of any Contract known to such counsel and applicable to the Company or its significant subsidiaries;
(x) which the Company is not an “investment company” anda party, after giving effect to except for any such conflict, breach, violation, default or event which would not, individually or in the Offering aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws (or similar organizational document) of the Notes Company, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the application accuracy of the proceeds therefromrepresentations and warranties of the Initial Purchasers in Section 8 hereof) any statute, will not be an “investment company”judgment, as such term is defined in the 1940 Act; and
(xi) decree, order, rule or regulation known to such counsel does not know of any legal or governmental proceedings pending or threatened to which be applicable to the Company or any of its subsidiaries properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(xv) To the knowledge of such counsel, no consent, waiver, approval, authorization or order of or filing, registration, qualification, license or permit of or with any court or governmental agency or body, or third party is required for (i) the issuance and sale by the Issuers of the Notes to the Initial Purchasers or the consummation by the Issuers of the other transactions contemplated hereby and (ii) the consummation by the Issuers of the transactions contemplated by the Acquisition Agreements, to the extent each is a party or thereto and (iii) the execution by the Company of the New Credit Facility and the consummation by the Issuers of each of the transactions contemplated by the New Credit Facility, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained.
(xvi) To the property knowledge of such counsel, there are no legal or governmental proceedings involving or affecting either Issuer or the Company Subsidiaries or any of its subsidiaries is subject that their respective properties or assets which would be required to be described in a prospectus pursuant to the Act that are not so described in the Final Memorandum or Memorandum, nor are there any statutes, regulations, material contracts or other documents that which would be required to be described in a prospectus pursuant to the Act that are not so described or incorporated in the Final Memorandum.
(xiixvii) commencing with None of the Company’s taxable year ended December 31Issuers or any of the Subsidiaries is, 1998, or immediately after the Company was organized sale of the Securities to be sold hereunder and has operated the application of the proceeds from such sale (as described in conformity with the requirements for qualification as a real estate investment trust (“REIT”) Final Memorandum under the Codecaption "Use of Proceeds") will be, and an "investment company" as such term is defined in the Company’s present and proposed method Investment Company Act of operation1940, as represented by the Company, will permit the Company to continue to so qualifyamended.
(xiiixviii) No registration under the Act of the Notes Securities is required in connection with the sale of the Notes Securities to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement)Statement, the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or accredited investors as defined in Rule 501(a) (1), (2), (3) or (B7) that promulgated under the offer or sale of the Notes is made in an offshore transaction as defined in Regulation SAct ("Accredited Investors"), (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company Issuers contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes Securities to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof.
(xix) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, ▇▇▇ & ▇▇▇▇▇, Incorporated shall additionally state that it has participated in conferences with officers and other representatives of the Issuers, representatives of the independent public accountants for the Issuers, representatives of Canadian counsel for the Issuers, representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsections (x) and (xi) of this Section 7(a)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, 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 contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, engineering, statistical and accounting data included in the Final Memorandum). In rendering any such opinionthe foregoing opinions, such counsel ▇▇▇ & ▇▇▇▇▇ Incorporated may (i) rely, as to matters of fact, to the extent such counsel deems proper, on certificates upon the representations and certifications of responsible officers of the Company and Issuers or of public officials and, and (ii) rely as to matters involving the application of laws of any jurisdiction other than the State federal laws of New York or the United States or of America and the General Corporation Law laws of the State of DelawareTexas and the corporation law of the State of Nevada, to the extent satisfactory such counsel deems proper and specifies in form and scope to counsel for the Initial Purchaserssuch opinion, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and are subject to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Notes in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the financial condition, business, prospects, properties, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum (excluding any amendments or supplements thereto after the date hereof), which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum (excluding any amendments or supplements thereto after the date hereof) untrue in any material respect or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Notes.
(c) The Initial Purchasers shall have received on the Closing Date a legal corporate opinion from ▇of ▇▇▇▇▇▇▇ Chance US LLP& Berlin, Chartered, counsel for the Company, dated the Closing Date, Date and addressed to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon in the form attached hereto as Exhibit A.
(d) The Initial Purchasers shall have received on the Closing Date a regulatory opinion from ▇▇▇▇▇▇▇ & Berlin, Chartered, special regulatory counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form attached hereto as Exhibit B.
(e) The Initial Purchasers shall have received on the Closing Date an opinion from Marcus & ▇▇▇▇▇▇▇▇, P.C., local counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form attached hereto as Exhibit C.
(f) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ LLP▇. An opinion ▇▇▇▇▇▇▇▇, Esq., Corporate Counsel of the Company, dated the Closing Date and addressed to the Initial Purchasers in the form attached hereto as Exhibit D.
(g) The Initial Purchasers shall have received on the Closing Date opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be delivered to (Australia) in the Initial Purchasers and counsel for form attached hereto as Exhibit E, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (Hong Kong) in the Initial Purchasers covering matters reasonably requested by form attached hereto as Exhibit F, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (Germany) in the Initial Purchasers. References to form attached hereto as Exhibit G, Coudert Freres (France) in the Final Memorandum form attached hereto as Exhibit H, TMI Associates (Japan) in this subsection the form attached hereto as Exhibit I, Stibbe Simont ▇▇▇▇▇▇▇ Duhot (aThe Netherlands) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from form attached hereto as Exhibit J, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (United Kingdom) in the form attached hereto as Exhibit K, Advokatfirman ▇▇▇▇▇▇▇ (Sweden) in the form attached hereto as Exhibit L and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (Switzerland) in the form attached hereto as Exhibit M, special regulatory counsel for the Company in each of the jurisdictions described above, each dated the Closing Date and addressed to you, as Initial Purchasers.
(h) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, and addressed to the Initial Purchasers, with respect to certain legal matters relating matter referred to this Agreement above and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinionrequest.
(i) The Initial Purchasers shall have received letters addressed to the Initial Purchasers, and dated the date hereof and the Closing Date from (i) KPMG Peat Marwick LLP, independant certified public accountants, (ii) KPMG, Chartered Accountants and Registered Auditors, independant certified public accountants and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ , Blakiston & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectivelyP.A., independent certified public accountants, substantially in the date hereof and the Closing Date, in form and substance satisfactory to counsel for forms heretofore approved by the Initial Purchasers.
(di) There shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt of the Company (other than in the ordinary course of business) from that set forth or contemplated in the Offering Memorandum (excluding any amendment or supplement thereto after the date hereof); (ii) there shall not have been, since the respective dates as of which information is given in the Offering Memorandum (excluding any amendment or supplement thereto after the date hereof), except as may otherwise be stated in the Offering Memorandum (excluding any amendment or supplement thereto after the date hereof), any material adverse change in the financial condition, business, prospects, properties, net worth or results of operations of the Company and the Subsidiaries taken as a whole; (iii) the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Offering Memorandum (excluding any amendment or supplement thereto after the date hereof); and (iv) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date, and the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of the Company (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(j) and in Section 7(k) hereof.
(k) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(l) The Notes shall have been approved for trading on PORTAL.
(m) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any class of securities of the Company, or (ii) it is reviewing its ratings assigned to any class of securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(n) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer such further certificates and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct documents as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall reasonably have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Companyrequested. All such opinions, certificates, letters and other documents delivered pursuant to this Agreement will comply be in compliance with the provisions hereof only if they are reasonably satisfactory in all material respects form and substance to the Initial Purchasers and counsel for the Initial Purchasers. The Any certificate or document signed by any officer of the Company and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers, shall furnish be deemed a representation and warranty by the Company to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as to the Initial Purchasers shall reasonably requeststatements made therein.
Appears in 1 contract
Sources: Purchase Agreement (Telegroup Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation respective obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the The Initial Purchasers shall not have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, discovered and disclosed to the effect that:
(i) Company prior to or on such counsel has no reason to believe Delivery Date that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or the date of such opinion, included any amendment or includes supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material fact or omitted or omits to state any fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iib) All corporate proceedings and other legal matters incident to the Company authorization, form and each validity of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized Operative Documents and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation Offering Memorandum or any amendment or supplement thereto, and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability legal matters relating to the Company Operative Documents and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority transactions contemplated thereby shall be reasonably satisfactory in all material respects to own, lease and operate their respective properties and assets and conduct their respective businesses as described in counsel to the Final MemorandumInitial Purchasers, and the Company has corporate power shall have furnished to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, all documents and proceedings in all material respects as would be required information that they may reasonably request to be disclosed in a prospectus pursuant enable them to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIApass upon such matters.
(vic) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇▇▇, counsel for the Initial Purchasers, dated the Closing Date, with respect L.L.P. shall have furnished to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such their written opinion, ▇▇▇▇▇▇ ▇as counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in substantially the form attached hereto as Exhibit A.
(d) The Initial Purchasers shall have received from Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP ▇▇, counsel for the Initial Purchasers, such opinion or opinions, addressed to the Initial Purchasers, dated such Delivery Date, with respect to the issuance and sale of the Notes, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Company shall have received and may rely upon furnished to such certificates and other counsel such documents and information as it may they reasonably request for the purpose of enabling them to pass upon such matters.
(ce) The At the time of execution of this Agreement, the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Dateletter, in form and substance satisfactory to counsel for the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are an independent registered public accounting firm within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings.
(df) With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letters"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are an independent registered public accounting firm within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing on such Delivery Date a certificate of its Chairman certificate, dated such Delivery Date and delivered on behalf of the Board, Company by its President chief executive officer or its Chief Executive Officer chief financial officer, in form and its Chief Financial Officer substance satisfactory to the Initial Purchasers Purchasers, to the effect that:
(i) the representations The representations, warranties and warranties agreements of the Company in this Agreement Section 1 are true and correct as if made on and as of the Closing such Delivery Date; and the Company has performed complied with all covenants and its agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; andcontained herein;
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither Neither the Company nor any of its subsidiaries has shall have sustained since the date of the latest audited financial statements included in the Offering Memorandum (A) any material loss or interference with their respective businesses or properties its business from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto), and (B) since such date there has not been any materially adverse change (including, without limitation, a material change in management the capital stock or control)long-term debt of the Company (other than the issuance of shares of the Common Stock as contemplated by the Offering Memorandum) or any of its subsidiaries, or any change, or any development involving a prospective materially adverse change, in or affecting the condition (financial or otherwise)general affairs, management, earnings, properties, business affairs or business prospectsfinancial position, stockholders’ equity, net worth ' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto); and
(iii) Such officer has carefully examined the Offering Memorandum and, in such officer's opinion (A) the Offering Memorandum, as of its date, did not include any untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum.
(h) The Indenture shall have been duly executed and delivered by the Company and the Trustee and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(i) The Company and the Initial Purchasers shall have executed and delivered the Registration Rights Agreement (in form and substance satisfactory to the Initial Purchasers) and the Registration Rights Agreement shall be in full force and effect.
(j) The NASD shall have accepted the Notes for trading on PORTAL.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Offering Memorandum any 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, except as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto) and (ii) since such date there shall not have been any material change in the capital stock or long-term debt of the Company (other than the issuance of shares of the Common Stock as contemplated by the Offering Memorandum) or any of its subsidiaries, taken or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as a wholeset forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto), except the effect of which, in each any such case as described in clause (i) or (ii), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Notes being delivered on such Delivery Date on the terms and in the manner contemplated by in the Final Offering Memorandum (exclusive of any amendment or supplement thereto).
(el) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingof the following:
(i) trading in securities generally on the New York Stock Exchange, nor Inc. ("NYSE"), the American Stock Exchange, the Nasdaq National Market or the over-the-counter market, or trading in any securities of the Company on any exchange (including the Nasdaq National Market) shall any notice have been given suspended or the settlement of such trading generally shall have been materially disrupted, or minimum prices shall have been established on any intended such exchange or potential downgrading market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction;
(ii) a banking moratorium shall have been declared by United States federal or New York State authorities;
(iii) the United States shall have become engaged in hostilities, other than in Iraq and Afghanistan, there shall have been an escalation in hostilities involving the United States, or there shall have been a declaration of any review for a possible national emergency or war by the United States; or
(iv) there shall have occurred such a material adverse change that does not indicate in general economic, political or financial conditions, including without limitation as a result of terrorist activities after the direction date hereof, or the effect of international conditions on the possible changefinancial markets in the United States shall be such as to make it, in the rating accorded any sole judgment of the Company’s securities by Initial Purchasers, impracticable or inadvisable to proceed with the offering or delivery of the Notes being delivered on such Delivery Date on the terms and in the manner contemplated in the Offering Memorandum (exclusive of any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Actamendment or supplement thereto).
(fm) The Indenture Company shall have been executed furnished to the Initial Purchasers such further information, certificates and delivered by all documents as the parties theretoInitial Purchasers may reasonably request to evidence compliance with the conditions set forth in this Section 5.
(gn) On The members of the Closing Date, board of directors of the Company and the executive officers of the Company shall have furnished to the Initial Purchasers shall have received "lock-up" letters, covering a period of 60 days from the Registration Rights Agreement executed by date of the Company Offering Memorandum, in form and such agreement shall be in full force and effect at all times from and after substance satisfactory to the Closing DateInitial Purchasers.
(ho) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificatesletters, letters evidence and documents delivered pursuant to certificates mentioned above or elsewhere in this Agreement will comply shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory in all material respects to counsel to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, hereunder shall be subject, in the Initial Purchasers’ sole their discretion, to the accuracy of the condition that all representations and warranties and other statements of the Company contained herein as of the date hereof are, at and as of each Closing DateTime of Delivery, as if made on true and as of each Closing Datecorrect, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by condition that the Company shall have performed all of its covenants obligations hereunder theretofore to be performed, and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, shall have furnished to you such opinion or opinions, dated the Closing Datesuch Time of Delivery, with respect to certain legal such matters relating to this Agreement as you may reasonably request, and such other related matters counsel shall have received such papers and information as the Initial Purchasers they may reasonably require. In rendering request to enable them to pass upon such opinion, ▇▇▇▇▇▇ matters;
(b) Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP LLP, counsel for the Company, shall have received furnished to you its written opinion, dated such Time of Delivery, in form and may rely upon such certificates and other documents and information as it may reasonably request substance agreed to pass upon such matters.by the parties prior to the date hereof;
(c) The Initial Purchasers On the date of the Offering Memorandum concurrently with the execution of this Agreement and also at each Time of Delivery, ▇▇▇▇▇ & Young LLP shall have received from PricewaterhouseCoopers LLP furnished to you a letter or letters datedletters, respectively, dated the date hereof and the Closing Daterespective dates of delivery thereof, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:you;
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither Neither the Company nor any of its subsidiaries has shall have sustained since the date of the latest audited financial statements included in the Pricing Memorandum any material loss or interference with their respective businesses or properties its business from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, order or decree, otherwise than as set forth or contemplated in the Pricing Memorandum, and (ii) since the respective dates as of which information is given in the Pricing Memorandum there has shall not have been any materially adverse change (including, without limitation, a change in management the capital stock (other than the issuance or control)grant of securities pursuant to employee equity incentive plans existing as of the date of this Agreement or pursuant to outstanding options, warrants or rights) or long‑term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective materially adverse change, in or affecting the condition (financial or otherwise)general affairs, management, earnings, properties, business affairs or business prospectsfinancial position, stockholders’ equity, net worth equity or results of operations of the Company or any of and its subsidiaries, taken otherwise than as a wholeset forth or contemplated in the Pricing Memorandum, except the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in this Agreement and in each case as described in or contemplated by of the Final Memorandum (exclusive of any amendment or supplement thereto).Pricing Disclosure Package and the Offering Memorandum;
(e) Subsequent to On or after the execution and delivery of this Agreement and prior to the Closing Date, there Applicable Time (i) no downgrading shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s debt securities by any “nationally recognized statistical rating organization”, as such that term is defined for purposes of Rule 436(g)(2by the Commission in Section 3(a)(62) under the Exchange Act., and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities;
(f) The Indenture On or after the Applicable Time there shall not have been executed occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq Global Select Market; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and delivered by all in the parties thereto.manner contemplated in the Pricing Disclosure Package and the Offering Memorandum;
(g) On A number of shares of Common Stock equal to the Closing DateMaximum Number of Underlying Securities shall have been duly listed, subject to notice of issuance, on the NYSE;
(h) The Company shall have obtained and delivered to the Initial Purchasers executed copies of an agreement from each of the Company’s directors and executive officers listed in Schedule IV hereto, substantially to the effect set forth in Exhibit A hereof;
(i) The Initial Purchasers shall have received an executed original copy of the Registration Rights Agreement executed Indenture;
(j) The Securities shall be eligible for clearance and settlement through the facilities of DTC;
(k) The Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsection (e) of this Section and as to such other matters as you may reasonably request;
(i) All amounts outstanding under the Loan and Security Agreement, dated August 22, 2014 (as amended, the “Loan Agreement”)), by and between Silicon Valley Bank, the Company and Workiva International LLC, shall have been repaid (or caused to have been repaid) by the Company and such agreement the Loan Agreement shall be in full force and effect at all times from and after the Closing Date.have been terminated; and
(hj) On or before the Closing Date, the Initial Purchasers and counsel for the The Initial Purchasers shall have received such further certificates(i) a certificate of ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, documents or other information as they may have reasonably requested from Executive Vice President & Chief Financial Officer of the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are in a form that is reasonably satisfactory in all material respects to the Initial Purchasers Purchasers, dated the date hereof, with respect to certain financial information contained in the Pricing Disclosure Package and counsel for (ii) a “bring-down” certificate of ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President & Chief Financial Officer of the Company, in a form that is reasonably satisfactory to the Initial Purchasers. The Company shall furnish , dated the Closing Date, with respect to certain financial information contained in the Offering Memorandum and to the Initial Purchasers effect that such conformed copies of officer reaffirms the statements made in the initial certificate furnished pursuant to subclause (i) with respect to such opinions, certificates, letters, and documents financial information contained in such quantities as the Initial Purchasers shall reasonably requestPricing Disclosure Package.
Appears in 1 contract
Sources: Purchase Agreement (Workiva Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, discovered and disclosed to the effect that:
(i) Company prior to or on such counsel has no reason to believe Delivery Date that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or the date of such opinion, included any amendment or includes supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material fact or omitted or omits to state any fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇▇ Godward LLP shall have furnished to the Initial Purchasers their written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that:
(i) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have has been duly organized incorporated and are is a validly existing as corporations corporation in good standing under the laws of their respective jurisdictions the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to Delaware;
(ii) the Company and has the requisite corporate power to own its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties property and assets and to conduct their respective businesses its business as described in the Final Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” Company is qualified as a foreign corporation to do business and is in good standing in the Final Memorandum, insofar as such statements purport to summarize certain provisions State of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunderCalifornia;
(iv) the execution authorized, issued and delivery outstanding capital stock of this Agreement the Company was as set forth in the Offering Memorandum under the caption “Capitalization” as of the date stated therein.
(v) the Conversion Shares issuable on the date hereof have been duly authorized and reserved for issuance upon conversion of the Notes by all necessary corporate action and are free of preemptive rights arising under or pursuant to the Company and Delaware General Corporation Law, the Agreement has been duly executed Company’s certificate of incorporation or bylaws; the Conversion Shares issuable on the date hereof, when so issued and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by upon such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company conversion in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be duly authorized and validly issued, fully paid and nonassessable;
(vi) the legal, valid and binding obligations statements in the Offering Memorandum under the captions “Description of the Notes” and “Description of Capital Stock,” insofar as they purport to summarize the provisions of the Indenture, the Registration Rights Agreement, the Notes, and the Common Stock (including the Conversion Shares) fairly present the material terms of such agreements in all material respects and include such information that would be called for with respect to such matters pursuant to the Act and the rules and the regulations thereunder in a Registration Statement on Form S-3 filed with the Commission;
(vii) there is no restriction upon the voting or transfer of any shares of Common Stock pursuant to the Company, enforceable in accordance with their terms (subject, as to enforcement ’s certificate of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium incorporation or other laws affecting creditors’ rights generally from time to time in effect).bylaws;
(viii) to the knowledge of such counsel and other than as set forth in the Offering Memorandum, there is no action, proceeding or investigation pending or overtly threatened against the Company has all requisite corporate power before any court or administrative agency that questions the validity of the Purchase Agreement or the Notes or that would materially and authority to execute, deliver and perform its obligations under adversely affect the Registration Rights Agreement; consummation of the Registration Rights transactions contemplated by the Purchase Agreement has been duly authorized or the performance by the Company and, when duly executed and delivered by the Company of its obligations thereunder or might result in a Material Adverse Effect (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of other than with respect to the Company, enforceable against ’s or any of its subsidiaries’ patent applications currently pending before the Company in accordance with its terms (subjectU.S. Patent and Trademark Office or before any foreign governmental authority that administers the registration of patents, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerationswhich we express no opinion).;
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, Registration Rights Agreement and the Exchange issuance of the Notes and the Private Exchange NotesConversion Shares do not violate any provision of the certificate of incorporation or bylaws of the Company and, to the knowledge of such counsel, do not violate or contravene (a) any governmental statute, rule or regulation applicable to the Company or any of its subsidiaries; (b) any order, writ, judgment, injunction, decree or award which has been entered against the Company or any of its subsidiaries; or (c) the terms of any Material Contract (with or without the passage of time and/or notice);
(x) all consents, approvals, authorizations, or orders of, and filings, registrations, and qualifications with, any regulatory authority or governmental body in the United States required for the execution and delivery of the Purchase Agreement, the issuance, offering Indenture and sale the Registration Rights Agreement by the Company and the issuance of the Notes to and the Initial Purchasers by the Company pursuant to this AgreementConversion Shares have been made or obtained, the compliance by the Company except (a) as may be required under state securities or “Blue Sky” laws in connection with the other provisions distribution of this Agreement the Notes and the consummation of the other transactions herein contemplated do not Conversion Shares (xas to which such counsel expresses no opinion), (b) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws rules and regulations of the various states NASD (as to which such counsel expresses no opinion), (c) as may be required under rules and regulations of the United States of America Nasdaq Stock Market (as to which such counsel expresses no opinion) and other U.S. jurisdictions (d) any registration or qualification that may be required in connection with the offer Registration Rights Agreement;
(xi) no registration of the offering of the Notes or the Conversion Shares (assuming conversion on the date hereof pursuant to the terms of the Notes) under the Securities Act, and sale no qualification of the Indenture under the Trust Indenture Act, is required in connection with the purchase of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance the manner contemplated in the Purchase Agreement other than any registration or qualification that may be required in connection with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement;
(xii) the statements in the Offering Memorandum under the caption “Certain United States Federal Income Tax Considerations,” insofar as they purport to constitute summaries of matters of United States federal income tax law and regulations or the effectiveness legal conclusions with respect thereto, constitute accurate summaries of the Shelf Registration Statement matters described therein in all material respects;
(xiii) the Company is not and will not become, as defined a result of the consummation of the transactions contemplated by the Purchase Agreement, and application of the net proceeds therefrom as described in the Registration Rights Agreement)Offering Memorandum, the Indenture is not required to be qualified under register as an “investment company,” within the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale meaning of the Notes is made in an offshore transaction Investment Company Act of 1940, as defined in Regulation S, amended;
(iixiv) the accuracy Company has all necessary corporate right, power and authority to execute and deliver each of the Initial Purchasers’ representations in Section 8 Operative Documents to which it is a party and those of to perform its obligations thereunder and to issue, sell and deliver the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers Purchasers;
(xv) this Agreement has been duly authorized, executed and delivered by the initial resale thereof and Company;
(iiixvi) the due Indenture has been duly authorized, executed and delivered by the Company and constitutes valid and binding obligations of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general principles of equity and limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(xvii) the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and constitutes valid and binding obligations of the Company enforceable against the Company in accordance with its terms, except as rights to indemnity contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general principles of equity and limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law); and
(xviii) the Notes have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers Purchasers, will constitute legally valid and binding obligations of the agreements set forth Company, entitled to the benefits of the Indenture and enforceable against the Company in Section 8 hereofaccordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general principles of equity and limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law). In rendering any such opinion, such counsel may relystate that its opinion is limited to matters governed by the federal laws of the United States of America, as the laws of the State of California and the Delaware General Corporation Law, and with respect to the enforceability and binding effect of the Indenture, the Registration Rights Agreement and the Notes, solely the laws of the state of New York, and in respect of matters of fact, to the extent such counsel deems proper, on upon certificates of responsible officers of the Company Company, provided that such counsel shall state that it believes that the Initial Purchasers and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, it are justified in relying upon such certificates. Such counsel shall also have furnished to the extent satisfactory in form and scope to counsel for the Initial PurchasersPurchasers a written statement, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel for participated in conferences with officers and other representatives of the Company, the Company’s independent registered public accounting firm, the Initial Purchasers covering matters reasonably requested by and their counsel, at which the Initial Purchasers. References contents of the Offering Memorandum were discussed, and while such counsel has not independently verified and is not passing upon or assuming responsibility for the accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, nothing has come to the Final attention of such counsel that causes it to believe that the Offering Memorandum (other than the financial statements, financial and statistical data and supporting schedules as to which such counsel shall make no statement), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in this subsection (a) shall include any amendment or supplement thereto prepared order to make the statements therein, in accordance with light of the provisions of this Agreement at the Closing Datecircumstances under which they were made, not misleading.
(bd) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP& White LLP shall have furnished to the Initial Purchasers their written opinion, as special Alabama counsel for to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, dated to the Closing Dateeffect that:
(i) Nektar Alabama has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Alabama and has all corporate power and authority necessary to own or hold its properties and conduct the businesses in which it is engaged, with respect as described in the Offering Memorandum; except as otherwise disclosed in the Offering Memorandum, all of the issued and outstanding capital stock of Nektar Alabama has been duly authorized and validly issued, is fully paid and non-assessable and, based on the stock ledger of Nektar Alabama, is owned by the Company, directly or through subsidiaries; and to certain legal matters relating to the knowledge of such counsel, none of the outstanding shares of capital stock of Nektar Alabama was issued in violation of the preemptive or similar rights of any securityholder of Nektar Alabama; and
(ii) the execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement and such other related matters as the Initial Purchasers may reasonably requireissuance of the Notes and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby by the Company do not result in any violation of the provisions of the articles of incorporation or bylaws of Nektar Alabama. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the laws of the State of Alabama.
(e) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP LLP, shall have received and may rely upon such certificates and other documents and information as it may reasonably request furnished to pass upon such matters.
(c) The the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters datedtheir written opinion, respectivelyas counsel to the Initial Purchasers, addressed to the date hereof Initial Purchasers and the Closing dated such Delivery Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(df) With respect to the letter of Ernst & Young LLP delivered to the Initial Purchasers concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Initial Purchasers a letter (the “bring-down letter”) of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(g) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing on such Delivery Date a certificate of its Chairman certificate, dated such Delivery Date and delivered on behalf of the Board, Company by its President or its Chief Executive Officer chief executive officer and its Chief Financial Officer chief financial officer, in form and substance satisfactory to the Initial Purchasers Purchasers, to the effect that:
(i) the representations representations, warranties and warranties agreements of the Company in this Agreement Section 1 hereof are true and correct as if made on of the date given and as of the Closing such Delivery Date; and the Company has performed complied in all covenants and material respects with all its agreements and satisfied all conditions on its part contained herein to be performed or satisfied at or prior to the Closing or on such Delivery Date; and;
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), A) neither the Company nor any of its subsidiaries has sustained sustained, since the date of the latest audited financial statements included in the Offering Memorandum, any material loss or interference with their respective businesses or properties its business from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, order or decree, except (x) as set forth or contemplated in the Offering Memorandum and (y) for operating losses incurred in the ordinary course of business, or (B) since such date there has not been any materially adverse change (including, without limitation, a change in management the capital stock or controllong-term debt of the Company or any of its subsidiaries (except as disclosed in the Offering Memorandum and except for exercise of outstanding options described in the Offering Memorandum or pursuant to Authorized Grants and as provided in Section 1(l) above), or any change, or any development involving a prospective materially adverse change, in or affecting the condition (financial or otherwise)general affairs, management, earnings, properties, business affairs or business prospectsfinancial position, stockholders’ equity, net worth equity or results of operations of the Company or any of and its subsidiaries, taken subsidiaries considered as a wholeone enterprise, except in each case as described in set forth or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, Purchaser hereunder shall be subject, in the Initial Purchasers’ sole discretion, subject to the continuing accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, to as the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to case may be; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and agreements obligations hereunder and to the following additional further conditions:
(a) On The Initial Purchaser shall not have advised the Closing DateCompany that the Offering Circular, or any supplement or amendment thereto, contains an untrue statement of fact which, in the Initial Purchasers shall have received a legal opinion from of Kell▇▇▇▇▇ ▇▇▇▇ Chance US LLP& ▇arr▇▇ ▇▇▇, counsel for the CompanyInitial Purchaser, dated the Closing Dateis material, to the effect that:
(i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any a fact which, in the opinion of Kell▇▇ ▇▇▇▇ & ▇arr▇▇ ▇▇▇, counsel for the Initial Purchaser, is material fact and is required to be stated therein or is necessary in order to make the statements thereinstatements, in the light of the circumstances under which they were made, not misleading. No order suspending the sale of the Securities in any jurisdiction shall have been issued on either the Closing Date or the relevant Option Closing Date, if any, and no proceedings for that purpose shall have been instituted or shall be contemplated.
(iib) On or prior to the Closing Date and each Option Closing Date, if any, the Initial Purchaser shall have received from Kell▇▇ ▇▇▇▇ & ▇arr▇▇ ▇▇▇ such opinion or opinions with respect to the organization of the Company, the validity of the Securities, the Offering Circular and other related matters as the Initial Purchaser may request and Kell▇▇ ▇▇▇▇ & ▇arr▇▇ ▇▇▇ shall have received such papers and information as they may reasonably request to enable it to pass upon such matters.
(c) On the Closing Date and each Option Closing Date, if any, the Initial Purchaser shall have received an opinion of Hale ▇▇▇ Dorr ▇▇▇, counsel to the Company, dated the Closing Date, or such Option Closing Date, as the case may be, addressed to the Initial Purchaser and in form and substance satisfactory to the Initial Purchaser and Kell▇▇ ▇▇▇▇ & ▇arr▇▇ ▇▇▇, to the effect that:
(A) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have has been duly organized incorporated and are is validly existing as corporations a corporation in corporate and tax good standing under the laws of their respective jurisdictions its jurisdiction of incorporation and are incorporation, (B) the Company is duly qualified to transact do business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described foreign corporation in the Final Memorandum, Commonwealth of Massachusetts and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viiiC) the Company has all requisite corporate power and authority necessary to executeown or lease its properties and conduct its business as described in the Offering Circular;
ii) the Company's authorized capital stock as of December 31, deliver and perform its obligations 1996 is as set forth under the Registration Rights Agreementheading "Capitalization" in the Offering Circular; iii the Registration Rights Agreement Securities and all other securities issued or issuable by the Company which are described in the Offering Circular conform or, when issued and paid for, will conform in all material respects to the descriptions thereof contained in the Offering Circular; all issued and outstanding capital stock of the Company has been duly authorized and validly issued and is fully paid and non-assessable; to such counsel's knowledge, none of such securities were issued in violation of the preemptive rights of any securityholder of the Company or similar contractual rights granted by the Company or applicable securities laws; the Notes have been duly authorized and, when duly executed validly issued, delivered and delivered by the Company (assuming due authorization, execution and delivery thereof paid for by the Initial Purchasers)Purchaser in the manner contemplated by this Agreement, will be a legal, valid duly authorized and binding agreement outstanding obligations of the Company, Company and enforceable against the Company in accordance with its terms (subjecttheir terms, as except to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except the extent that any rights to indemnity or contribution thereunder enforceability thereof may be limited by federal (1) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally; or (2) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); the Warrants have been duly authorized and, when validly issued, delivered and state securities laws and public policy considerations).
(ix) paid for in the execution and delivery manner contemplated by the Company ofWarrant Agreement, will be duly authorized, validly issued and outstanding obligations of the Company; the shares of Common Stock issuable upon conversion of the Notes and exercise of the Warrants have been duly authorized and reserved for issuance upon conversion of the Notes and exercise of the Warrants, as the case may be, and, when issued, delivered and paid for, will be validly issued, fully paid and nonassessable; and the performance by holders of outstanding securities of the Company are not entitled to any preemptive rights with respect to the Securities pursuant to the Company's Certificate of its obligations underIncorporation or By-laws, this Agreementas amended, or any other instrument known to such counsel; all corporate action required to be taken for the Registration Rights Agreementauthorization, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering issue and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Securities has been duly and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiariesvalidly taken;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Hybridon Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, Purchaser hereunder are subject to the accuracy in all material respects (except to the extent such representations and warranties are qualified by materiality, in which case, in all respects), when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its covenants and agreements hereunder obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the The Initial Purchasers Purchaser shall not have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, discovered and disclosed to the effect that:
(i) Company prior to or on such counsel has no reason to believe Delivery Date that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or the date of such opinion, included any amendment or includes supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchaser, is material fact or omitted or omits to state any fact which is material fact and necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iib) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Professional Corporation, shall have furnished to the Initial PurchasersPurchaser their written opinion, as counsel to the Company, addressed to the Initial Purchaser and dated the Closing such Delivery Date, in form and substance reasonably satisfactory to the Initial Purchaser, to substantially the effect that:
(i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to own its properties and to conduct its business as described in the Offering Memorandum;
(ii) The Company has an authorized capitalization as set forth in the Offering Memorandum, and the Company's capital stock conforms in all material respects to the description thereof contained in the Offering Memorandum under the caption "Description of Capital Stock";
(iii) The Warrant Shares that are authorized on the date hereof have been duly authorized and reserved for issuance upon exercise of the Warrants by valid corporate action; are free of preemptive rights under the Company's charter or by-laws, the federal laws of the United States of America and the Delaware General Corporation Law; when so issued and delivered upon such exercise in accordance with respect the terms of the Warrant Agreement and the Warrants, such Warrant Shares will be validly issued, fully paid and nonassessable; and conform in all material respects to certain legal matters the description thereof contained in the Offering Memorandum under the caption "Description of Capital Stock";
(iv) This Agreement has been duly authorized, executed and delivered by the Company;
(v) The Warrants have been duly authorized by the Company and when executed and issued in accordance with terms of the Warrant Agreement and delivered to and paid for by the Initial Purchaser, will constitute valid and binding obligations of the Company, entitled to the benefits of the Warrant Agreement and enforceable against the Company in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing;
(vi) The Warrant Agreement has been duly authorized, executed and delivered by the Company and (assuming due authorization, execution and delivery by the Warrant Agent) constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing;
(vii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and (assuming due authorization, execution and delivery thereof by the Initial Purchaser) constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms except as rights to indemnity contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), by an implied covenant of good faith and fair dealing;
(viii) None of the execution, delivery and performance of this Agreement, the Warrant Agreement, the Registration Rights Agreement, the issuance and sale of the Warrants, the issuance of the Warrant Shares or the consummation of any other of the transactions contemplated hereby and thereby will conflict with, result in a breach or violation of any of the terms or provisions of, or constitute a default under (A) the charter or by-laws of the Company or (B) any decree, regulation or order known to such counsel to be applicable to the Company of any Delaware court, governmental authority or agency having jurisdiction over the Company or any of its properties or assets, except such conflicts, breaches, violations or defaults in clause (B) above as would not have a material adverse effect on the Company's ability to perform its obligations under this Agreement and such the other related matters Operative Documents or to consummate the transactions contemplated hereby and thereby;
(ix) Except as may be required under the Initial Purchasers Securities Act and the rules and regulations promulgated thereunder in connection with the registration of the Warrant Shares pursuant to the Registration Rights Agreement, or as otherwise contemplated by the Operative Documents, or as may reasonably requirebe required by the securities or "blue sky" laws of any state of the United States in connection with the sale of the Warrants, no consent, approval, authorization or order of, or filing or registration with, any Delaware court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Warrant Agreement by the Company and the issuance of the Warrants and the Warrant Shares and the consummation of the transactions contemplated hereby and thereby; and
(x) The Company is not an "investment company" within the meaning of the Investment Company Act. In rendering such opinion, ▇▇▇▇▇▇ ▇such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York (but only with respect to opinions as to validity or binding effect) and the Delaware General Corporation Law. Such counsel's opinion may state that it is not counsel to, and does not represent the Company in, intellectual property matters, including intellectual property litigation and, in particular, that it has made no independent investigation with respect to any litigation involving Rambus, Inc. Such counsel shall also have furnished to the Initial Purchaser a written statement, addressed to the Initial Purchaser and dated such Delivery Date, in form and substance satisfactory to the Initial Purchaser, to the effect that such counsel has participated in conferences with officers and other representatives of the Company, the independent accountants of the Company, counsel for the Initial Purchaser and the Initial Purchaser at which the Preliminary Offering Memorandum and the Offering Memorandum and related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the Preliminary Offering Memorandum, the Offering Memorandum or the statements contained therein and has made no independent check or verification thereof, on the basis of the foregoing, no facts have come to such counsel's attention that has caused it to believe that the Offering Memorandum (except the financial statements and the notes thereto and financial statement schedules and other information of an accounting, statistical or financial nature included therein, as to which such counsel need express no view) as of its date and such Delivery Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) The Company shall have furnished to the Initial Purchaser the opinion of the General Counsel, a Chief Corporate Counsel or an Assistant General Counsel of the Company, addressed to the Initial Purchaser and dated such Delivery Date, in form and substance reasonably satisfactory to the Initial Purchaser, to substantially the effect that:
(i) To the knowledge of such counsel, but without inquiring into dockets of any court, commissions, regulatory body, administrative agency or other government body, and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company is a party or of which any property or assets of the Company is the subject which such counsel believes individually would be reasonably expected to have a Material Adverse Effect;
(ii) The Warrant Shares are free of preemptive rights under any agreement known to such counsel;
(iii) None of the execution, delivery and performance of this Agreement, the Warrant Agreement, the Registration Rights Agreement, the issuance and sale of the Warrants, the issuance of the Warrant Shares or the consummation of any other of the transactions contemplated hereby and thereby will conflict with, result in a breach or violation of any of the terms or provisions of, or constitute a default under (A) any material indenture or other material agreement or instrument to which the Company or its subsidiaries is a party or bound, or (B) any decree, regulation or order applicable to the Company of any U.S. Federal or Idaho court, governmental authority or agency having jurisdiction over the Company or any of its properties or assets, except such conflicts, breaches, violations or defaults as would not have a material adverse effect on the Company's ability to perform its obligations under this Agreement and the other Operative Documents or to consummate the transactions contemplated hereby and thereby; and
(iv) Except as may be required under the Securities Act and the rules and regulations promulgated thereunder in connection with the registration of the Warrant Shares pursuant to the Registration Rights Agreement, or as otherwise contemplated by the Operative Documents, or as may be required by the securities or "blue sky" laws of any state of the United States in connection with the sale of the Warrants, no consent, approval, authorization or order of, or filing or registration with, any U.S. Federal or Idaho court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Warrant Agreement by the Company and the issuance of the Warrants and the Warrant Shares and the consummation of the transactions contemplated hereby and thereby. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America and the laws of the State of Idaho. Such counsel shall also have furnished to the Initial Purchaser a written statement, addressed to the Initial Purchaser and dated such Delivery Date, in form and substance satisfactory to the Initial Purchaser, to the effect that such counsel has participated in conferences with officers and other representatives of the Company, the independent accountants of the Company, counsel for the Initial Purchaser and the Initial Purchaser at which the Preliminary Offering Memorandum and the Offering Memorandum and related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the Preliminary Offering Memorandum, the Offering Memorandum or the statements contained therein and has made no independent check or verification thereof, on the basis of the foregoing, no facts have come to such counsel's attention that has caused him to believe that the Offering Memorandum (except the financial statements and the notes thereto and financial statement schedules and other information of an accounting, statistical or financial nature included therein, as to which such counsel need express no view) as of its date and such Delivery Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received furnished to the Initial Purchaser their written opinion, as counsel to the Initial Purchaser, addressed to the Initial Purchaser and may rely upon dated such certificates Delivery Date, in form and other substance reasonably satisfactory to the Initial Purchaser, and the Company shall have furnished to such counsel all documents and information as it that they may reasonably request to enable them to pass upon such mattersthe matters covered therein.
(ce) The At the time of execution of this Agreement, the Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Dateletter, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, addressed to the Initial Purchaser and dated the date hereof.
(df) With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Initial Purchaser concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchaser a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchaser and dated such Delivery Date (A) confirming that they are independent accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under the applicable rules and regulations of the Commission, (B) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the procedures and findings of such firm with respect to the financial information and other matters covered by the initial letter and (C) confirming in all material respects the procedures and findings set forth in the initial letter.
(g) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing Purchaser on such Delivery Date a certificate of its Chairman certificate, dated such Delivery Date and delivered on behalf of the Board, its President Company by the president or its Chief Executive Officer any vice president of the Company and its Chief Financial Officer chief financial officer, in form and substance reasonably satisfactory to the Initial Purchasers Purchaser, to substantially the effect that:
(i) the representations The representations, warranties and warranties agreements of the Company in this Agreement Section 1 hereof are true and correct in all material respects (except to the extent such representations and warranties are qualified by materiality, in which case, in all respects) as if made on of the date given and as of the Closing such Delivery Date; and the Company has performed complied in all covenants and material respects with all its agreements and satisfied all conditions on its part contained herein to be performed or satisfied at or prior to the Closing or on such Delivery Date; and
(ii) subsequent to (A) The Company has not sustained since the respective dates as date of which information is given the latest audited financial statements included in the Final Offering Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties its business from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any labor dispute or any legal court or governmental proceedingaction, and there has not been any materially adverse change (including, without limitation, a change in management order or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a wholedecree, except in each case (x) as described in set forth or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.co
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Representative on behalf of the several Initial Purchasers to purchase and pay for the Offered Notes shall, on the Closing Date will be subjectsubject to the accuracy, in the Initial Purchasers’ sole discretionall material respects, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Dateherein, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofperformance, to the performance in all material respects, by the Company of its covenants and agreements obligations hereunder and to the following additional conditionsconditions precedent:
(a) On the Closing DateThe Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Commercial Loans shall have been delivered to the Indenture Trustee pursuant to the Sale and Servicing Agreement.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Companycertificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that:
, to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such counsel certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has no reason complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or the date of such opinion, included any Additional Offering Document contained or includes any contains an untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(iic) The Class A-1 Notes and the Company and Class A-2 Notes shall each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized rated no less than “Aaa” by ▇▇▇▇▇’▇, “AAA” by S&P, and are validly existing as corporations in good standing under “AAA” by Fitch, the laws of their Class B Notes shall have been rated no less than “Aa2” by ▇▇▇▇▇’▇, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by ▇▇▇▇▇’▇, “A” by S&P and “A” by Fitch, the Class D Notes shall have been rated no less than “Baa2” by ▇▇▇▇▇’▇, “BBB” by S&P and “BBB” by Fitch and the Class E Notes shall have been rated no less than “Ba2” by ▇▇▇▇▇’▇, “BB” by S&P and “BB” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the failure to be so qualified would amount to a material liability or disability to rating of the Company and its subsidiaries, taken as a whole; Offered Notes have been placed under review.
(d) On the Company and each date of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the Company pursuant date of delivery thereof, in form and substance satisfactory to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation Representative on behalf of the other transactions herein contemplated do not (x) require the consentInitial Purchasers, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum.
(xiie) commencing with Initial Purchasers shall have received an opinion, dated the Company’s taxable year ended December 31Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes in-house counsel to the Initial Purchasers as contemplated by this Agreement Indenture Trustee, in form and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(bf) The Initial Purchasers shall have received a legal opinions of Dechert LLP, counsel to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of the Initial Purchasers and (ii) with respect to certain “true sale” and “non–consolidation” issues in form and substance satisfactory to the Representative on behalf of the Initial Purchasers.
(g) The Initial Purchasers shall have received an opinion from of Dechert LLP, counsel to the Company and the Trust Depositor, with respect to certain “perfection issues” in form and substance satisfactory to the Representative on behalf of the Initial Purchasers.
(h) The Initial Purchasers shall have received opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial Purchasers, dated Owner Trustee and the Closing DateTrust, with respect to certain legal trust matters relating and with respect to this Agreement certain “perfection issues,” in each case in form and such other related matters as substance satisfactory to the Representative on behalf of the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersPurchasers.
(ci) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP the Indenture Trustee a letter certificate signed by one or letters datedmore duly authorized officers of the Indenture Trustee, respectively, the date hereof and dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchaserscustomary form.
(dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form.
(k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and its counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinionsfurther information, certificates, letters, certificates and documents in such quantities as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel.
(l) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, Units under this Agreement is subject to the accuracy satisfaction of each of the following conditions:
(a) All the representations and warranties of Holdings and the Company Selling Securityholders contained herein as of in this Agreement shall be true and correct on the date hereof Closing Date with the same force and as of each Closing Date, effect as if made on and as of each the Closing Date. Holdings shall have performed or complied with all of the agreements and satisfied all conditions to be performed, complied with or satisfied by it under this Agreement on or prior to the Closing Date.
(1) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchaser not later than 9:00 a.m., New York City time, on the second business day following the date of this Agreement, or at such later date and time as the Initial Purchaser may approve in writing;
(2) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Units or the sale of the Holdings Preferred Stock or the Holdings Subordinated Notes; and
(3) at the Closing Date, to (i) no stop order preventing the accuracy use of the statements Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of the Company’s officers made Securities for sale in any jurisdiction designated by the Initial Purchaser pursuant to the provisions hereofSection 5(f) hereof shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending before or, to the performance by knowledge of Holdings be contemplated.
(1) Since the date of the latest balance sheet included in the Offering Documents, there shall not have been any event that had a Material Adverse Effect, or any development involving a prospective change that would be reasonably likely to have a Material Adverse Effect, whether or not arising in the ordinary course of business;
(2) since the date of the latest balance sheet included in the Offering Documents, there has not been any change, or any development involving a prospective change, in the capital stock or in the long- term debt of Holdings or the Company of its covenants and agreements hereunder and to from that set forth in the following additional conditions:Offering Documents;
(a3) On neither Holdings nor the Company shall have material liability or obligation, direct or contingent, other than those reflected in the Offering Memorandum; and
(4) on the Closing Date, the Initial Purchasers Purchaser shall have received a legal certificate dated the Closing Date, signed on behalf of Holdings by the undersigned officers of Holdings, confirming all matters set forth in Sections 9(a), (b), and (c) hereof.
(d) The Initial Purchaser shall have received on the Closing Date an opinion from (satisfactory to the Initial Purchaser and counsel to the Initial Purchaser) dated the Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇ Chance US LLP& ▇▇▇▇▇, counsel for the Company, dated the Closing DateHoldings, to the effect that:
(i1) such counsel Holdings has no reason all necessary corporate power and authority to believe that (other than enter into and perform its obligations under the financial statements Operative Documents and other financial information contained thereinto issue, as sell and deliver the Units to which such counsel need express no opinion) the Final Memorandum, as of its date or Initial Purchaser to be sold by the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.Initial Purchaser pursuant hereto;
(ii2) the The Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of Selling Securityholders has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full necessary power and authority to ownenter into and perform its obligations under this Agreement; (3) No consent, lease approval, authorization or order of, or filing or registration with, any regulatory body, administrative agency, or other governmental agency (except as securities or Blue Sky laws of the various states may require) which has not been made or obtained is required for the execution, delivery and operate their respective properties performance of the Operative Documents and assets the valid issuance and conduct their respective businesses sale of the Securities to the Initial Purchaser as described contemplated by this Agreement or the offering of the Securities as contemplated by the Offering Memorandum, except where the failure to obtain any such consents or waivers, individually or in the Final Memorandumaggregate, would not be reasonably likely to have a Material Adverse Effect or adversely effect the ability to consummate the Offering;
(4) To the best of such counsel's knowledge, no consents or waivers from any person are required to consummate the transactions contemplated by the Operative Documents or the Offering Documents other than such consents and waivers as have been or will be obtained;
(5) This Agreement has been duly authorized and validly executed by each of Holdings, the Company and the Selling Securityholders and (assuming the due execution and delivery thereof by the Initial Purchaser) is a legally valid and binding obligation of each of Holdings, the Company and the Selling Securityholders, enforceable against each of them in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally, (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity) and (iii) limited by securities laws prohibiting or limiting the availability of, and public policy against, indemnification or contribution;
(6) The Units have been duly and validly authorized by Holdings and, when issued in accordance with their terms and delivered to and paid for by the Company has corporate power to enter into Initial Purchaser in accordance with the terms of this Agreement, the Registration Rights Agreement Units will conform to the description thereof in the Offering Memorandum, and the Indenture will be legally valid and to carry out all the terms and provisions hereof and thereof and binding obligations of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiariesHoldings, enforceable against Holdings in accordance with their terms, except as otherwise the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally, (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity) and (iii) limited by securities laws prohibiting or limiting the availability of, and public policy against, indemnification or contribution;
(7) The Holdings Preferred Stock has been duly authorized and is full paid, nonassessable and entitled to the rights, priviledges and preferences set forth in the Final Certificate of Designations. The Holdings Preferred Stock conforms with the description thereof contained in the Offering Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;.
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum8) Holdings has duly authorized, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution Subordinated Note Indenture, and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), ) the Subordinated Note Indenture will be is a legal, legally valid and binding agreement obligation of the CompanyHoldings, enforceable against the Company Holdings in accordance with its terms terms, except as the enforceability thereof may be (subject, as to enforcement of remedies, i) subject to applicable bankruptcy, reorganization, insolvency, moratorium moratorium, reorganization or other similar laws affecting creditors’ in effect which affect the enforcement of creditors rights generally from time to time and (ii) limited by general principles of equity (whether considered in effecta proceeding at law or in equity). The Indenture meets the requirements for qualification under the TIA.;
(vi9) the The Holdings Subordinated Notes have been duly authorized by all necessary corporate action of authorized, issued and authenticated in accordance with the Company andSubordinated Note Indenture and conform to the description thereof in the Offering Memorandum, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, are legally valid and binding obligations of the CompanyHoldings, enforceable against Holdings in accordance with their terms terms, except as the enforceable thereof may be (subject, as to enforcement of remedies, i) subject to applicable bankruptcy, reorganizationinsolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally and (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity);
(10) Holdings has duly authorized, executed and delivered the Indenture, and (assuming due authorization, execution and delivery thereof by the Trustee) the Indenture is a legally valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium moratorium, reorganization or other similar laws affecting creditors’ in effect which affect the enforcement of creditors rights generally from time to time and (ii) limited by general principles of equity (whether considered in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement a proceeding at law or in the Exchange Offer contemplated by the Registration Rights Agreementequity);
(vii11) the Exchange Notes and the Private Exchange Notes have been Holdings has duly authorized by the CompanySeries A Notes and, when issued and authenticated in accordance with the terms of the Indenture and delivered in exchange for the Units in accordance with the terms of such Units, the Series A Notes will conform to the description thereof in the Offering Memorandum, and will be the legally valid and binding obligations of Holdings, enforceable against Holdings in accordance with their terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally and (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity);
(12) Holdings has duly authorized the Series B Notes and, when the Exchange Notes issued and the Private Exchange Notes are duly executed and delivered by the Company authenticated in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming Indenture, the due authorizationSeries B Notes will conform to the description thereof in the Offering Memorandum, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, legally valid and binding obligations of the CompanyHoldings, enforceable against Holdings in accordance with their terms terms, except as the enforceability thereof may be (subject, as to enforcement of remedies, i) subject to applicable bankruptcy, reorganization, insolvency, moratorium moratorium, reorganization or other similar laws affecting creditors’ in effect which affect the enforcement of creditors rights generally from time to time and (ii) limited by general principles of equity (whether considered in effecta proceeding at law or in equity).;
(viii13) the Company Holdings has all requisite corporate power duly authorized, executed and authority to execute, deliver and perform its obligations under delivered the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Initial Purchasers), will be Purchaser) the Registration Rights Agreement is a legal, legally valid and binding agreement obligation of the CompanyHoldings, enforceable against the Company Holdings in accordance with its terms terms, except as the enforceability thereof may be (subject, as to enforcement of remedies, i) subject to applicable bankruptcy, reorganization, insolvency, moratorium moratorium, reorganization or other similar laws affecting creditors’ rights generally from time to time in effect and except that any which affect the enforcement of creditors rights to indemnity or contribution thereunder may be generally, (ii) limited by federal general principles of equity (whether considered in a proceeding at law or in equity) and state (iii) limited by securities laws prohibiting or limiting the availability of, and public policy considerations).against, indemnification or contribution;
(ix14) The statements under the execution captions "Certain Transactions," "Description of Units," "Description of Exchange Notes," "Description of Capital Stock," "Description of Certain Indebtedness," and delivery by "Certain U.S. Federal Income Tax Considerations" in the Offering Memorandum, insofar as such statements constitute a summary of legal matters, documents or proceedings referred to therein, are correct in all material respects;
(15) Neither Holdings nor the Company of, and is an "investment company" or a company "controlled" by an "investment company" within the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale meaning of the Notes to Investment Company Act of 1940, as amended;
(16) When the Initial Purchasers by the Company Units are issued and delivered pursuant to this Agreement, such Units, the compliance by the Company with the other provisions of this Agreement Holdings Preferred Stock and the consummation Holdings Subordinated Notes will not be of the other transactions herein contemplated do not same class (xwithin the meaning of Rule 144A under the Act) require the consent, approval, authorization, registration or qualification as securities of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the Holdings that are listed on a national securities or Blue Sky laws exchange registered under Section 6 of the various states of the Exchange Act or that are quoted in a United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiariesautomated inter- dealer quotation system;
(x17) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the The Subordinated Note Indenture is not required to be qualified under the TIA, in each case Trust Indenture Act;
(18) The Indenture is not required to be qualified under the Trust Indenture Act prior to the first to occur of (i) the Registered Exchange Offer and (ii) the effectiveness of the Shelf Registration Statement;
(19) No registration under the Act of the Units is required for the sale of the Units to the Initial Purchaser as contemplated hereby or for the Exempt Resales (assuming (i) (A) that the purchasers Eligible Purchasers who buy such Notes the Units in the initial resale thereof Exempt Resales are qualified institutional buyers as defined in Rule 144A promulgated under QIBs or a non-U.S. person outside the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, United States and (ii) the accuracy of, and compliance with, the representations of the Initial Purchasers’ representations in Section 8 Purchaser and those of Holdings and the Company Selling Securityholders contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers Sections 6, 7 and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinionaddition, such counsel may relyshall state that it has participated in conferences with officers and other representatives of Holdings, representatives of the independent public accountants for Holdings, the Initial Purchaser's representatives and counsel for the Initial Purchaser, at which conferences the contents of the Offering Memorandum and related matters were discussed, and, although such counsel is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum, and have not made any independent check or verification thereof, during the course of such participation (relying as to matters of fact, materiality to the extent such counsel deems properdeemed appropriate upon the statements of officers and other representatives of Holdings), on certificates of responsible officers of no facts came to such counsel's attention that caused such counsel to believe that the Company and public officials andOffering Memorandum, as of its date, contained an untrue statement of material fact or omitted to matters involving state a material fact required to be stated therein or necessary to make the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, statements therein not misleading; it being understood that such counsel expresses no belief with respect to the extent financial statements, schedules and other financial and statistical data included in the Offering Memorandum or incorporated therein.
(e) The Initial Purchaser shall have received on the Closing Date an opinion (satisfactory in form and scope to counsel for the Initial PurchasersPurchaser and counsel to the Initial Purchaser) dated the Closing Date of Rose, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel for the Initial PurchasersHoldings, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i1) Each of Holdings and the representations Company is a corporation duly organized, validly existing and warranties in good standing under the laws of its jurisdiction of incorporation, has full corporate power and authority to carry on its respective business as it is currently being conducted and to own, lease and operate its respective properties, and, to the best of such counsel's knowledge, is duly qualified and is in good standing as a foreign corporation registered to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not be reasonably likely to have a Material Adverse Effect;
(2) All of the outstanding capital stock of Holdings has been duly authorized and validly issued and is fully paid and nonassessable and is not subject to preemptive or similar rights;
(3) All of the outstanding capital stock of the Company has been duly authorized and validly issued and is fully paid and nonassessable, and is owned by Holdings free and clear of any Lien;
(4) Neither Holdings nor the Company is in violation of its charter or bylaws, and, to the best knowledge of such counsel after due inquiry, neither Holdings nor the Company is in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other agreement, indenture or instrument material to the conduct of the business of Holdings or the Company, to which Holdings or the Company is a party or by which Holdings, the Company or their respective property is bound;
(5) The execution, delivery and performance of the Operative Documents by Holdings, compliance by Holdings with the provisions thereof and the Securities, the execution, delivery and performance of this Agreement are true by the Company and correct as if made on and as the consummation of the Closing Date; transactions contemplated hereby and thereby does not conflict with or constitute a breach of any of the terms or provisions of, or a default under, or result in the imposition of a lien or encumbrance on any properties of Holdings or the Company, or an acceleration of indebtedness pursuant to, (1) the charter or bylaws of Holdings or the Company, (2) any bond, debenture, note, indenture, mortgage, deed of trust or other agreement or instrument known to such counsel after due inquiry to which Holdings or the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed is a party or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of by which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)Holdings, neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiariestheir respective property is bound, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e3) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies best of such opinionscounsel's knowledge, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.any l
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements Firm Debentures hereunder and are subject to the following additional conditions:
(a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Debentures in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Debentures, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Debentures.
(c) The Initial Purchasers shall have received a legal on the Closing Date an opinion from of Brob▇▇▇, ▇▇le▇▇▇ & ▇arr▇▇▇▇ Chance US LLP▇▇▇, counsel for the Company, dated the Closing DateDate and addressed to the Initial Purchasers, to the effect that:
(i) The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority, and all Permits as are required under applicable law, to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum (and any amendment or supplement thereto); the Company is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such counsel registration or qualification, except where the failure so to register or qualify or to be in good standing or to have such Permits does not have a Material Adverse Effect;
(ii) The authorized capital stock of the Company is as set forth under the caption "Capitalization" in the Offering Memorandum; and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Offering Memorandum under the caption "Description of Capital Stock";
(iii) All the shares of capital stock of the Company outstanding prior to the issuance of the Debentures have been duly authorized and validly issued, are fully paid and nonassessable;
(iv) The shares of Common Stock issuable upon conversion of the Debentures have been duly authorized and when issued and delivered upon conversion of the Debentures will be validly issued, fully paid and nonassessable and will be free of any (A) preemptive rights under the Company's Certificate of Incorporation or applicable Delaware law or (B) to the knowledge of such counsel, and except as set forth in the Offering Memorandum, similar rights that entitle or will entitle any person to acquire any Common Stock upon the issuance of the Debentures and the issuance of the Common Stock upon conversion of the Debentures by the Company;
(v) The Company has no reason corporate power and authority to believe enter into this Agreement and the Registration Rights Agreement and to issue, sell and deliver the Debentures to be sold by it to the Initial Purchasers as provided herein, and this Agreement and the Registration Rights Agreement have been duly authorized, executed and delivered by the Company and are valid, legal and binding agreements of the Company, enforceable against the Company in accordance with their terms, except (A) as enforcement of rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy and (B) subject to the qualification that (other than the financial statements enforceability of the Company's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other financial information contained thereinlaws relating to or affecting creditors' rights generally and by general equitable principles;
(vi) The Indenture has been duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; no qualification of the Indenture under the 1939 Act is required in connection with the offer and sale of the Debentures contemplated hereby or in connection with the Exempt Resales;
(vii) The Debentures have been duly and validly authorized by the Company and when executed by the Company in accordance with the Indenture and, assuming due authentication of the Debentures by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(viii) Neither the offer, sale or delivery of the Debentures, the issuance of Common Stock upon conversion of the Debentures or the payment to holders of Debentures of an amount of cash equal to the market price of the underlying Common Stock in lieu of conversion into Common Stock in accordance with the terms of the Indenture, the execution, delivery or performance by the Company of this Agreement, the Registration Rights Agreement or the Indenture, compliance by the Company with the provisions hereof or thereof nor consummation by the Company of the transactions contemplated hereby or thereby conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, in any material respect, the certificate or articles of incorporation or bylaws or other organizational documents of the Company or any material agreement, indenture, lease or other instrument to which the Company is a party or by which it or its properties is bound that is an exhibit to any Incorporated Document or is known to such counsel, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any material agreement or instrument to which it is a party or by which it may be bound or to which any of the Company's property or assets is subject that is an exhibit to any Incorporated Document or is known to such counsel, nor will any such action result in any violation in any material respect of any existing law, or any regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws and, in the case of the Registration Rights Agreement, the Act and the Exchange Act and the 1939 Act), judgment, injunction, order or decree known to such counsel, applicable to the Company or any of its properties;
(ix) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Exchange Act, or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Debentures and the shares of Common Stock issuable upon conversion of the Debentures, or such as may be required to qualify the Indenture under the 1939 Act, and such as may be required in connection with the performance by the Company of its obligations under the Registration Rights Agreement, as to which such counsel need not express no an opinion) for the Final valid issuance and sale of the Debentures to the Initial Purchasers as contemplated by this Agreement;
(x) To the knowledge of such counsel, (A) other than as described or contemplated in the Offering Memorandum (or any supplement thereto), there are no legal or governmental proceedings pending or threatened against the Company, or to which the Company, or any of its property, are subject, which are not disclosed in the Offering Memorandum and which, if adversely decided, are reasonably likely to cause a Material Adverse Effect or materially affect the issuance of the Debentures or the consummation of the transactions contemplated by the Operative Documents;
(xi) The statements in the Offering Memorandum under the captions "Description of Debentures" and "Certain United States Federal Tax Considerations," insofar as such statements constitute summaries of the documents and legal matters referred to therein, fairly summarize, in all material respects, such documents and legal matters;
(xii) When the Debentures are issued and delivered pursuant to this Agreement, such Debentures will not be of the same class (within the meaning of Rule 144A(d)(3) under the Act) as any security of the Company that is listed on a national securities exchange registered under Section 6 of the Exchange Act or that is quoted in a United States automated interdealer quotation system;
(xiii) It is not necessary in connection with the offer, sale and delivery of the Debentures to the Initial Purchasers in the manner contemplated by this Agreement or in connection with Exempt Resales to register the Debentures under the Securities Act;
(xiv) The Company is not required to deliver the information specified in Rule 144A(d)(4) in connection with the offering and resale of the Debentures by the Initial Purchasers;
(xv) The Company is not required to obtain stockholder consent or approval pursuant to the rules of the Nasdaq National Market in connection with the issuance, offering and resale of the Debentures; and
(xvi) Although such counsel have not undertaken, except as otherwise indicated in their opinion, to determine independently, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Offering Memorandum, such counsel have participated in the preparation of the Offering Memorandum, including review and discussion of the contents thereof, and have reviewed the Incorporated Documents, and nothing has come to the attention of such counsel that has caused them to believe that the Offering Memorandum, as of its date and as of the Closing Date or the date of such opinionOption Closing Date, included or includes any as the case may be, contained an untrue statement of a material fact or omitted or omits to state any 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 misleadingmisleading or that any amendment or supplement to the Offering Memorandum, as of its respective date, and as of the Closing Date or the Option Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and the notes thereto and the schedules and other financial and statistical data included or incorporated by reference in the Offering Memorandum and information furnished by or on behalf of the Initial Purchasers). The opinion of such counsel shall be limited to the laws of the United States, the State of California and the internal corporation law of the State of Delaware.
(iid) The Initial Purchasers shall have received on the Company Closing Date an opinion of Keit▇ ▇. ▇▇▇▇▇▇▇, ▇▇q., General Counsel of the Company, dated the Closing Date and each of its “significant subsidiaries” addressed to the Initial Purchaser to the effect that:
(i) Each Significant Subsidiary (as defined in Rule 1.02(wlisted on Schedule III) of Regulation S-X under the Exchange Act) have been is a corporation duly organized and are validly existing as corporations and in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each jurisdiction of its significant subsidiaries have organization, with full corporate power and authority authority, and all Permits as are required under applicable law, to own, lease lease, and operate their respective its properties and assets and to conduct their respective businesses its business as described in the Final MemorandumOffering Memorandum (and any amendment or supplement thereto); each Subsidiary is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, and except where the Company has corporate power failure so to enter into this Agreement, the Registration Rights Agreement and the Indenture and register or qualify or to carry out be in good standing or to have such Permits does not have a Material Adverse Effect; all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final MemorandumSignificant Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and, with the exception of Medicus, to the knowledge of such counsel, are wholly owned beneficially by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any perfected security interests orinterest, lien, adverse claim, equity or other encumbrance ("Lien"), except as described in the Offering Memorandum; and upon completion of the Medicus Acquisition (as defined in the Offering Memorandum), all of the outstanding shares of capital stock of Medicus will be wholly owned by the Company directly, free and clear of any Liens;
(ii) Neither the offer, sale or delivery of the Debentures, the issuance of Common Stock upon conversion of the Debentures, the execution, delivery or performance by the Company of this Agreement, the Registration Rights Agreement or the Indenture, compliance by the Company with the provisions hereof or thereof nor consummation by the Company of the transactions contemplated hereby or thereby conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, in any material respect, the certificate or articles of incorporation or bylaws or other organizational documents of any of the Significant Subsidiaries or any material agreement, indenture, lease or other instrument to which any of the best knowledge Significant Subsidiaries is a party or by which any of them or any of their respective properties is bound that is an exhibit to any Incorporated Document or is known to such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” will result in the Final Memorandumcreation or imposition of any lien, insofar as such statements purport to summarize certain provisions charge or encumbrance upon any property or assets of any of the Notes Significant Subsidiaries pursuant to the terms of any material agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of the property or assets of any of them is subject that is an exhibit to any Incorporated Document or is known to such counsel, nor will any such action result in any violation in any material respect of any existing law, or any regulation, ruling (assuming compliance with all applicable state securities and the IndentureBlue Sky laws and, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary case of the legal mattersRegistration Rights Agreement, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.the
Appears in 1 contract
Sources: Purchase Agreement (Quadramed Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the each Initial Purchasers Purchaser to purchase and pay for Notes in an amount equal to the principal amount set forth on Schedule I hereto opposite its name shall, in its sole discretion, be subject to the satisfaction of all of the following conditions on the Closing Date:
(a) The Issuer shall have good title to the Managed Containers and the other Collateral, free and clear of all Liens other than Permitted Encumbrances.
(b) The Issuer shall have (i) caused all Uniform Commercial Code financing statements (or documents of similar import) required to perfect the first priority security interest of the Indenture Trustee pursuant to the Indenture in the Collateral and related items, in each case, to be duly filed in the manner required by the laws of each appropriate jurisdiction, (ii) caused all Uniform Commercial Code financing statements (or documents of similar import) required to perfect the first priority security interest of the Issuer (and the Indenture Trustee as assignee of the Issuer) pursuant to the Contribution and Sale Agreement and (iii) paid, or caused to be paid, all transfer taxes, documentary stamp taxes and filing fees incurred in connection therewith.
(c) All corporate and other proceedings in connection with the transactions contemplated hereby and by the Series 2012-1 Related Documents and all documents incidental thereto shall be satisfactory in form and substance to such Initial Purchaser and its counsel, and such Initial Purchaser shall have received its Notes and any other documents incident to the transactions contemplated hereby and by the Series 2012-1 Related Documents that such Initial Purchaser or its counsel shall reasonably request. Each Initial Purchaser or its counsel shall have received on the Closing Date certified copies of all documents evidencing corporate or other organizational action taken by the Issuer, CAL and the Indenture Trustee to approve the execution and delivery of this Agreement and the other Series 2012-1 Related Documents to which they are a party and the consummation of the transactions contemplated hereby and thereby.
(d) The Series 2012-1 Related Documents and the Notes shallshall conform in all material respects to the descriptions thereof contained in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum. Immediately prior to the sale of the Notes to the Initial Purchasers, the Notes shall have been executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, and this Agreement and each of the other Series 2012-1 Related Documents that is to be executed and delivered on or prior to the Closing Date shall have been executed and delivered by the Issuer, the Manager and all other parties thereto. The Initial Purchasers and the Indenture Trustee shall have received on the Closing Date a true and correct copy of each Series 2012-1 Related Document delivered on or prior to the Closing Date, and the Initial Purchasers or their authorized representative shall have received its original Notes.
(e) Each Initial Purchaser or its counsel shall have received on the Closing Date signature and incumbency certificates executed by Authorized Signatories of the Issuer, CAL and the Indenture Trustee certifying the identities and signatures of those officers who executed each of this Agreement and the other Series 2012-1 Related Documents delivered in connection with Series 2012-1 to which the Issuer, CAL or the Indenture Trustee, as the case may be, is a party.
(f) The purchase of the Notes by each Initial Purchaser shall be permitted by the laws and regulations to which such Initial Purchaser is subject.
(g) Each of the Notes shall have been rated “A(sf)” by Standard & Poor’s, each such rating shall be in full force and effect and the Initial Purchasers shall have received on the Closing Date a letter from Standard & Poor’s dated on or before the Closing Date to such effect.
(h) Subsequent to the respective dates as of which information is given in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum, there shall not have occurred (i) any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise) or in the earnings, business, operations or business prospects of the Issuer, the Manager or CAL (collectively, an “Issuer Person”), whether or not arising in the ordinary course of business that, in the sole judgment of the Initial Purchasers’ , makes it impracticable or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes, (ii) any other event or occurrence that could have a material adverse effect on the ability of the Issuer to perform any of its obligations under any Series 2012-1 Related Document to which it is a party or a material adverse effect on the value of the Managed Containers or the rights and remedies of the Indenture Trustee or any Series 2012-1 Noteholder under any Series 2012-1 Related Document, that, in the sole discretionjudgment of the Initial Purchasers, makes it impracticable or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes, (iii) a general moratorium on commercial banking activities declared by any state of the United States or United States authorities, (iv) any downgrading in, or withdrawal of, the rating (including any “shadow rating”) accorded to securities (or the placement of any such securities on any watch or similar list with negative implications) issued by any Issuer Person or the Notes of any other Series previously issued by the Issuer by any “nationally recognized statistical rating organization,” as that term is defined for purposes of Rule 436(g) under the Act, or any public announcement that any such organization has under surveillance or review its rating (including any “shadow rating”) of the Notes of any other Series previously issued by the Issuer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of the rating), (v) any outbreak or escalation of hostilities, insurrection or armed conflict in which the United States of America is involved, any declaration of war by Congress or any other national or international calamity or emergency that in the sole judgment of the Initial Purchasers makes it impractical or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes, or (vi) any material adverse change in financial, political or economic conditions having an effect on the U.S. or Western European financial markets that in the sole judgment of the Initial Purchasers makes it impractical or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes.
(i) Each Initial Purchaser shall have received opinions, dated the Closing Date, addressed to such Initial Purchaser and in form and substance satisfactory to its counsel, of (i) ▇▇▇▇▇▇▇ Coie LLP, U.S. counsel to the accuracy Issuer and the Seller, as to (A) perfection of the Indenture Trustee’s interest in the Collateral and other UCC matters, (B) “true sale” and substantive consolidation, (C) corporate, tax and other matters, and (D) securities laws matters; (ii) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ Limited, special Bermuda counsel to the Issuer, as to (A) certain matters related to priority of the Indenture Trustee’s interest in the Collateral under Bermuda law, (B) corporate, tax and other matters, and (C) securities law matters; (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, special Barbados counsel to the Seller, as to (A) substantive consolidation and choice of law, and (B) corporate and other matters relating thereto and (iv) counsel to the Indenture Trustee, as to certain matters relating to the Indenture Trustee.
(j) Each Initial Purchaser shall have received a negative assurance letter, dated the Closing Date, addressed to such Initial Purchaser and in form and substance satisfactory to its counsel, of ▇▇▇▇▇▇▇ Coie LLP, U.S. counsel to the Issuer.
(k) Each Initial Purchaser shall have received one or more letters from an Independent Accountant each dated the date of the Preliminary Offering Memorandum (with respect to the Preliminary Offering Memorandum) and the Closing Date (with respect to the Offering Memorandum), in form and substance satisfactory to such Initial Purchaser and its counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” with respect to information contained in the Preliminary Offering Memorandum and the Offering Memorandum.
(l) The representations and warranties of the Company Issuer contained herein in this Agreement and in the other Series 2012-1 Related Documents to which it is a party shall be true and correct as of the date hereof and as of each the Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its . The Issuer shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Series 2012-1 Related Documents on or prior to the following additional conditions:
(a) On the Closing Date; since December 31, 2011, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations or business prospects of the Issuer; and no event shall have occurred and no condition shall exist that would constitute (or which with the giving of notice or passage of time or both would constitute) an Early Amortization Event or an Event of Default.
(m) Subsequent to the respective dates as of which information is given in the Preliminary Offering Memorandum and the Offering Memorandum, other than as contemplated by the Preliminary Offering Memorandum and the Offering Memorandum, neither the Issuer nor any Issuer Person shall have entered into any transactions that are material to the business, condition (financial or otherwise) or results of operations or business prospects of Issuer or any Issuer Person, respectively.
(n) Each Initial Purchasers Purchaser shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for certificate of the CompanyIssuer, dated the Closing Date, signed on its behalf by its President or any Vice President and its Chief Financial Officer or if such entity has none, its Treasurer, to the effect that:
(a) The conditions precedent set forth in Section 8(l) have been satisfied.
(i) such counsel has no reason Subsequent to believe that (the respective dates as of which information is given in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum, other than as contemplated by the Offering Memorandum, there has not occurred (A) any material adverse change, or any development involving a prospective material adverse change, in the condition (financial statements or otherwise) or in the earnings, business, operations or business prospects of the Issuer, whether or not arising in the ordinary course of business, or (B) any other event or occurrence that would have a material and other financial information contained therein, as adverse effect on the ability of the Issuer to perform any of its obligations under any Series 2012-1 Related Document to which such counsel need express no opinionit is a party.
(ii) Subsequent to the Final respective dates as of which information is given in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum, other than as contemplated by the Offering Memorandum, the Issuer has not entered into any transactions that are material and adverse to the business, condition (financial or otherwise) or results of its date operations or business prospects of the date Issuer.
(iii) As of such opinionthe Closing Date, included or includes any none of the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum contains an untrue statement of a material fact or omitted or omits to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that this representation shall not apply to statements or omissions made in reliance upon and in conformity with the Initial Purchaser Information.
(iio) Each Initial Purchaser shall have received confirmation that the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) Notes have been duly organized and are validly existing as corporations in good standing under the laws accepted for clearance of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has secondary market trading by The Depository Trust Company.
(p) The Offering Memorandum shall have been advised that the failure to be so qualified would amount to a material liability or disability distributed to the Company and its subsidiariesInitial Purchasers not later than 10:00 a.m., taken as a whole; New York time on October 11, 2012.
(q) All conditions to the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and issuance of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
Indenture (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) including the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding control agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing DateSeries 2012-1 Series Account, in form and substance satisfactory to counsel for the Initial Purchasers) shall have been satisfied. The Issuer shall have delivered a certificate to that effect to the Initial Purchasers, and all opinions delivered in connection with the satisfaction of such conditions shall be addressed to the Initial Purchasers.
(dr) This Agreement has not terminated pursuant to Section 12 hereof.
(s) The Company shall have furnished or caused to be furnished to outstanding principal balance of all Series of Notes then Outstanding does not exceed the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:Asset Base.
(it) A list (which may be in the representations and warranties form of the Company in this Agreement are true and correct as if made on and a data file) of Managed Containers as of the Closing Date; , which includes the Container Identification Number for each such Managed Container, shall have been delivered, in form and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior substance satisfactory to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)Initial Purchasers.
(eu) Subsequent All of the conditions precedent to the execution and delivery authentication of this Agreement and prior to the Closing Date, there Series 2012-1 Notes set forth in the Series 2012-1 Supplement shall not have occurred any downgrading, nor shall any notice have been given of any intended satisfied or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Actwaived.
(fv) The Indenture Issuer shall have been executed and delivered by all the parties thereto.
(g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) On or before the Closing Date, furnish to the Initial Purchasers and counsel for the Initial Purchasers shall have received Rating Agency (x) such further certificatesother agreements, documents or other information as they may have reasonably requested from the Company. All instruments, documents, opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to schedules as the Initial Purchasers or their counsel or the Rating Agency or its counsel reasonably may request and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such (y) originals and conformed copies of such all opinions, certificates, letters, schedules, agreements, documents and documents instruments delivered pursuant to this Agreement in such the quantities as that the Initial Purchasers shall or such Rating Agency, as the case may be, may reasonably request.
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Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchasers' obligations to purchase and pay for the Notes shall, shall be subject, in the Initial Purchasers’ sole discretion, subject to (i) the accuracy of the representations and warranties of the Company and MHI herein contained herein as of the date hereof and as of each the Closing Date, as if made on and as of each Closing Date(ii) the absence in any certificates, opinions, written statements or letters furnished pursuant to this Section 6 to the accuracy Initial Purchasers or to their counsel, of any qualification or limitation not previously approved by the statements of the Company’s officers made pursuant to the provisions hereofInitial Purchasers, to (iii) the performance by the Company and MHI of its covenants their respective obligations hereunder required to be performed on or prior to the Closing Date, and agreements hereunder and to (iv) the following additional conditions:
a. Since the date of the latest balance sheet included in the Definitive Memorandum: (ai) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital
b. The representations and warranties made by the Company and MHI herein shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; and the Company and MHI shall have complied in all material respects with all agreements hereunder required to be performed by the Company and MHI.
c. As to each Initial Purchaser, the purchase of and payment for the Notes to be purchased by such Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation, order or other restriction.
d. The Definitive Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York time, on the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may agree, and no stop order suspending the qualification or exemption from qualification of the Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
e. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Notes; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company or MHI, threatened against, the Company or MHI before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect, on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and MHI, taken as a whole.
f. On the Closing Date, the Initial Purchasers shall have received the opinion of Hayn▇▇ ▇▇▇ Boon▇, ▇.L.P., counsel to the Company and MHI, dated the
g. On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Companycertificate, dated the Closing Date, to signed by each of the effect that:
(i) such counsel has no reason to believe that (other than Chairman of the financial statements Board and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Vice President - Finance or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, President and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock Vice President - Finance of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;
(iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;
(iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company;
(v) the execution and delivery of the Indenture have been duly authorized by the Company andMHI, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA.
(vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;
(vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).
(viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations).
(ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries;
(x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and
(xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.
(xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify.
(xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters certificates of executive officers as the Initial Purchasers may reasonably require. In rendering such opinionspecify confirming the matters set forth in paragraphs (a), ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(cb) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:
(i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the ActSection 6.
(f) The Indenture shall have been executed and delivered by all the parties thereto.
(g) h. On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after Fulbright & Jawo▇▇▇▇ ▇.▇.P., an opinion, dated the Closing Date, addressed to the Initial Purchasers, with respect to the Company, MHI, the Offering Memorandum, the offer, sale and resale of the Notes and other related matters as the Initial Purchasers reasonably may require, and the Company shall have furnished to such firm such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(h) On or before i. Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from Coopers & Lybr▇▇▇ ▇.▇.P., and on the Closing Date, the Initial Purchasers shall have received from Coopers & Lybr▇▇▇ ▇.▇.P., a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and counsel for to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers.
j. Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received such further certificatesfrom Hudd▇▇▇▇▇▇, documents or other information as they may have reasonably requested from ▇▇d on the Company. All opinionsClosing Date, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably requesthave received from Hudd▇▇▇▇▇▇, ▇ letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers.
k. On the Closing Date, the Company shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
l. On the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
m. Each of the Enron Acquisition and the Conoco Acquisition shall be consummated prior to, or simultaneously with, the Closing of the offering on substantially the terms described in the Definitive Memorandum, and the Initial
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