Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date: (a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion. (b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion. (c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (e) The representations and warranties of the Issuers contained in this Agreement 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 any Authorized Person 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 shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), 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. (f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date. (g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect. (h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Appears in 2 contracts
Sources: Purchase Agreement (Bluewater Offshore Production Systems Usa Inc), Purchase Agreement (Bluewater Offshore Production Systems Usa Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇i) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or Company and certain of the Subsidiary Guarantors, as the case may be, in each case, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, as set forth in their reasonable discretionExhibit B-1 and Exhibit B-2 hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for 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 counsel may also state that, insofar as such opinionopinion involves factual matters, Milbankthey have relied, Tweedto the extent they deem proper, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have received and may rely upon such certificates and other documents and information as it may reasonably request been provided to pass upon such mattersthe Initial Purchasers.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited, unaudited and pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date the information stated in the comfort letter dated the date hereof and similarly address the audited, unaudited and pro forma financial information contained in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Subsidiary Guarantors’ 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 Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)Pricing Disclosure Package, 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.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate certificates of the IssuersCompany and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of each Issuer the Company or the applicable Subsidiary Guarantor by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company or the applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company or the applicable Subsidiary Guarantor 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or such Subsidiary Guarantor, 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).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Subsidiary Guarantors and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture, as amended or supplemented from time to time, executed by the Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect.
(j) The Securities shall be eligible for clearance and settlement through The Depository Trust Company. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company and the Subsidiary Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 2 contracts
Sources: Purchase Agreement (Omega Healthcare Investors Inc), Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, Notes shall be subject to the satisfaction or waiver waiver, in the sole discretion of the Representative, of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., in-house legal counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, as to the matters described in their reasonable discretionAnnex C hereto.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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 shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct of the business and operations of each none of the Issuers nor any of the Material Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the Issuerscertificates, dated the Closing Date, signed on behalf by the Chief Executive Officer or Chief Financial Officer of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Issuers, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 2 contracts
Sources: Purchase Agreement (Targa Resources Partners LP), Purchase Agreement (Targa Resources Partners LP)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
(ai) On the Closing Date, the The Initial Purchasers Purchaser shall have received opinions, dated as an opinion of the Closing Date and addressed counsel to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, Issuers in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date Purchaser and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial PurchasersPurchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, 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, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Independent Accountants a comfort letter or Issuers, "comfort" letters dated the date hereof and the Closing DateDate and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser.
(eiv) The representations and warranties of the Issuers contained in this Agreement 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 any Authorized Person 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 shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (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 Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction 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, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial 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 Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction 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 threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fx) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably 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.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Securities hereunder Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be enjoined (temporarily or permanently) on in full force and effect at all times from and after the Closing Date.
(gxiv) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident On 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated before the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate Indenture shall be signed executed by one Authorized Person who the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the managing director Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents 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 Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 2 contracts
Sources: Purchase Agreement (Affinity Group Inc), Purchase Agreement (Affinity Group Holding, Inc.)
Conditions of the Initial Purchasers’ Obligations. The --------------------------------------------------- obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers The Memorandum shall have received opinions, dated as of the Closing Date be in form and addressed substance reasonably satisfactory to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion. The Company shall have complied with Section 5(a) hereof.
(b) On the Closing Date, the Initial Purchasers shall have received an the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Company, in the form attached hereto as Exhibit A, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇, in-house legal counsel for Esq., Senior Vice President, Legal and Strategic Affairs, of the IssuersCompany, in the form attached hereto as Exhibit B, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers.
(cd) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(de) The Initial Purchasers shall have received from the Independent Accountants PricewaterhouseCoopers LLP a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ef) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Issuers Company shall have performed in all material respects all covenants and agreements and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)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.
(fg) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gh) Subsequent to the date of the Memorandummost recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hi) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct in all material respects 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 in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(j) 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.
(k) On the Closing Date, the Initial Purchasers shall have received the Escrow Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(l) On the Closing Date, the Company shall have irrevocably called for redemption of all of its 9 3/4% Senior Subordinated Debentures due 2007 and shall provide evidence thereof reasonably satisfactory to the Initial Purchasers. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have theretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments 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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇i) P▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇G▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or Company and certain of the Subsidiary Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to counsel for the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal as set forth in Exhibit B-1 and Exhibit B-2 hereto and (ii) local counsel for certain of the IssuersSubsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, as set forth in their reasonable discretionExhibit C hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇▇ LLP, counsel for 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 counsel may also state that, insofar as such opinionopinion involves factual matters, Milbankthey have relied, Tweedto the extent they deem proper, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have received and may rely upon such certificates and other documents and information as it may reasonably request been provided to pass upon such mattersthe Initial Purchasers.
(dc) The Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement 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 any Authorized Person the Company’s and the Subsidiary Guarantors’ 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 Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)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.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate certificates of the IssuersCompany and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of each Issuer the Company or the applicable Subsidiary Guarantor by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company or the applicable Subsidiary Guarantor 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 or the applicable Subsidiary Guarantor 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or such Subsidiary Guarantor, 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).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Subsidiary Guarantors and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect.
(j) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(k) The Securities shall be designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company and the Subsidiary Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The ------------------------------------------------- obligation of the each Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date and addressed counsel to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, Issuers in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for to the Initial Purchasers, dated the Closing Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇. In rendering such opinion, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchasers, as they may reasonably request to pass upon such matters. In addition, the Initial Purchasers shall have received a letter or letters permitting them to rely on any opinions rendered by counsel to the Issuers in connection with the Transactions.
(ii) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers shall have received from independent public accountants for the Independent Accountants a comfort letter or Issuers, "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for to the Initial Purchasers.
(eiv) The representations and warranties of the Issuers contained in this Agreement 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 any Authorized Person 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 shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company or the Subsidiaries from that set forth or contemplated in the Final Memorandum (other than additional borrowings under existing credit facilities) and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (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 Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction 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, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement, and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date thereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, or Lil' Champ not contemplated by the Final Memorandum that, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or Lil' Champ or any of the officers or directors of the Company or the Subsidiaries or Lil' Champ that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of each Issuer, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction 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 any of the Issuers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to there has not occurred (i) any change, or any development involving a prospective change, in or affecting the date general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the most recent financial Company, the Subsidiaries and Lil' Champ, taken as a whole, not contemplated by the Final Memorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries, or Lil' Champ, or any of the respective officers or directors of the Company or the Subsidiaries, or Lil' Champ, that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in such the capital stock of the Company or the Subsidiaries, or Lil' Champ, nor any material increase in the consolidated short-term or long-term debt of the Company or Lil' Champ, from that set forth or contemplated in the Final Memorandum (other than borrowings under existing credit facilities) and the Company and the Subsidiaries and Lil' Champ have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Company, the Subsidiaries and Lil' Champ, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or developmentwaivers of any provision thereof since the date of this Agreement. On the Closing Date, the New Credit Facility shall provide for (i) a revolving credit facility of not less than $45 million (with a $20 million sublimit for letters of credit), all of which shall be available on the Closing Date, and no information (ii) an acquisition facility of not less than $30 million, all of which shall be available to --- the Company on the Closing Date. The Lil' Champ Acquisition, the Equity Investment, the Tender Offer and the Consent Solicitation shall each have become known, that, individually been consummated on or in the aggregate, has or would be reasonably likely prior to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gx) Subsequent All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the date of Initial Purchasers and counsel to the Memorandum, Initial Purchasers. The Initial Purchasers and counsel to the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the IssuersNotes, dated together with cash on hand and the proceeds of the Equity Investment, as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, signed on behalf of each Issuer the Initial Purchasers shall have received the Registration Rights Agreement executed by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, Company and such certificate agreement shall be signed by one Authorized Person who in full force and effect at all times from and after the Closing Date.
(xiv) The Issuers shall have furnished or caused to be furnished to the managing director Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Sandhills Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇Dechert LLP, in-house legal counsel for the IssuersCompany, in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretionRepresentative. In rendering such opinion, Dechert 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) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Guarantors’ 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 Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which caseChief Executive Officer, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company and the Guarantors, that, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Guarantors and such agreement shall be in full force and effect and in form and substance reasonably satisfactory to the Representative.
(i) On or before the Closing Date, the Company shall have delivered to the trustee under the 2022 Notes Indenture an irrevocable notice of redemption in accordance with the provisions of the 2022 Notes Indenture (a copy of which shall be delivered to the Initial Purchasers) for all of its outstanding 2022 Notes.
(j) On the Closing Date, the Indenture shall continue to be in full force and effect and the Initial Purchasers shall have received an executed copy of the Authentication Order (as defined in the Indenture) required by Section 2.02 of the Indenture with respect to the issuance of the Notes. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company, the Guarantors and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Company of its covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
(ai) On The Initial Purchaser shall have received an opinion, dated the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)P.A., counsel for to the Issuer and/or the Guarantors, as the case may be, in each caseCompany, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date Purchaser and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for to the Initial PurchasersPurchaser, substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel to the Initial Purchaser, 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, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Independent Accountants a comfort letter or Company, "comfort" letters dated the date hereof and the Closing DateDate and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel to the Initial Purchaser.
(eiv) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (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 Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction 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, order, decree or other administrative proceeding instituted or threatened against any Transaction Party or against the Initial 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 Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final 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 Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. 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 complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction 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 threatened against any Transaction Party relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fx) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably 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.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Securities hereunder as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Company and such agreement shall be enjoined (temporarily or permanently) on in full force and effect at all times from and after the Closing Date.
(gxiv) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident On 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated before the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate Indenture shall be signed executed by one Authorized Person who the Company and the Trustee and such agreement shall be in full force and effect at all times from and after the managing director Closing Date.
(xv) The Company shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents 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 Purchaser and counsel to the Initial Purchaser. The Company shall furnish to the Initial Purchaser such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser 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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsthe opinion and negative assurance letter, each dated as of the Closing Date Date, and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇& ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or Company and the Guarantors, as in the case may be, in each case, in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretionRepresentative. In rendering such opinions, the foregoing shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinionthe opinion and negative assurance letter, each in form and substance satisfactory to the Representative, dated as of the Closing Date Date, and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof and on the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters Ernst & Young LLP, independent public accountants with respect to Parent, letters, dated the date hereof respective dates of delivery thereof and addressed to the Closing DateInitial Purchasers, in form and substance reasonably satisfactory to counsel for the Initial PurchasersRepresentative, 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 Pricing Disclosure Package and the Final Memorandum, provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on at and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and Guarantors’ respective 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 Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements of Parent included or incorporated by reference in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company, the conduct Guarantors nor any of the their respective subsidiaries shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany and the Guarantors, dated the Closing Date, signed on behalf by the Chief Executive Officer or President or any Senior Vice President and the Chief Financial Officer of the Company and each Guarantor, confirming the matters set forth in clauses (d), (e) and (f) of this Section 6.
(h) The Initial Purchasers shall have received reasonably satisfactory evidence of the good standing (or its equivalent in jurisdictions where such concept does not exist) of the Company and the Guarantors as of the Closing Date 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.
(i) The Notes shall be eligible for clearance and settlement through DTC.
(j) On the Closing Date, the Indenture, the Security Documents and ICA ▇▇▇▇▇▇▇▇ shall have been duly executed and delivered by a duly authorized officer of each Issuer of the Company, the Guarantors, the Trustee and the Collateral Agent, and the Notes shall have been duly executed and delivered by two Authorized Persons a duly authorized officer of the Company and duly authenticated by the Trustee.
(k) No securities of the Company shall have been downgraded by any nationally recognized statistical rating organization and no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its ratings of any securities of the Company or any Guarantor (other than an announcement with positive implications of possible upgrading).
(l) The Initial Purchasers shall have received the results of a recent lien search in each of the jurisdictions where assets of the Company and the Guarantors are located and any jurisdictions in which valid filings with respect to such assets of the Company and the Guarantors may be in effect, and such search shall reveal no liens on any of the assets of the Company, the Guarantors or any of their respective subsidiaries except (i) as described in the case Pricing Disclosure Package and the Final Memorandum (exclusive of any Issuer organized under amendment or supplement thereto after the laws date hereof) and (ii) those pursuant to the ABL Facility.
(m) Except as otherwise provided for in the Security Documents, the Indenture or the other documents entered into pursuant to the transactions described herein, the Representative and the Collateral Agent shall have received each of the NetherlandsSecurity Documents, in which caseform and substance reasonably satisfactory to the Initial Purchasers, and all other certificates, agreements or instruments necessary to perfect the Collateral Agent’s security interest in all of the Collateral. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such certificate further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company, the Guarantors and each of their respective subsidiaries as they shall be signed by one Authorized Person who have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall be furnish to the managing director Initial Purchasers such conformed copies of such Issuer)documents, to opinions, certificates, letters, schedules and instruments in such quantities as the effect that: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 Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date or any Option Closing Date:
(a) On the Closing Date and on any Option Closing Date, the Initial Purchasers shall have received opinionsthe opinion, dated as of the such Closing Date or Option Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); StroeterSkadden, Arps, Slate, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)▇▇▇▇ LLP, counsel for the Issuer and/or Company, substantially in the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretionof Annex B hereto.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the or any Option Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the such Closing Date or Option Closing Date, as the case may be, and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited or pro forma financial information in the Pricing Disclosure Package. On the Closing Date and any Option Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date and any Option Closing Date as if made on and as of the such Closing Date or Option Closing Date; the statements of any Authorized Person 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 such Closing Date or Option Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date or Option Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date or any Option Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date and any Option Closing Date, as the case may be, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)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 Time of Execution and on and as of such Closing Date or Option 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 such Closing Date or Option Closing Date;
(ii) at such Closing Date or Option Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(h) The shares of Common Stock issuable upon conversion of the Notes shall have been duly listed for quotation on the New York Stock Exchange.
(i) The Company shall have caused each executive officer and director of the Company to execute and deliver to the Representatives, on or prior to the date of this Agreement, a letter or letters, substantially in the form attached hereto as Annex C (the “Lock-up Agreement”). On or before the Closing Date and any Option Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Sunedison, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, Notes shall be subject to the satisfaction or waiver accuracy of the following conditions on or prior to representations and warranties of the Company in Section 2 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the 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 the consummation of the sale and purchase of the Notes and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to the effect set forth in Exhibit C hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such Counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, Milbank, Tweed, such Counsel may rely as to certain matters of Virginia law upon the opinion of Hunton & ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request LLP referred to pass upon such mattersin paragraph (a) above.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or both Deloitte & Touche LLP and Ernst & Young LLP letters dated dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, containing statements and information of the type ordinarily included in accountants’ comfort letters to underwriters and other placement agents with respect to the financial information included in and incorporated by reference into the Offering Memorandum.
(ed) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Financial Officer and the Treasurer of the Company to the effect that:
(i) the representations and warranties of the Issuers contained Company in this Agreement shall be are 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 any Authorized Person made pursuant to any certificate delivered in accordance with General Disclosure Package and the provisions hereof shall be true and correct on and Final Offering Memorandum, as of the date made and on and amended or supplemented as of the Closing Date, does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Issuers shall have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum
(exclusive of any amendment or supplement thereto after the date hereof), ii) subsequent to the date as of the most recent financial statements in such Memorandum (whether or not audited), there shall have been no event or development, and no which information shall have become known, that, individually or is given in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of General Disclosure Package and the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Final Offering Memorandum, neither the conduct of the business and operations of each of the Issuers shall not have been interfered Company nor its subsidiaries has sustained any material loss or interference with by strike, labor dispute, slowdown, work stoppage, their respective businesses or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court labor dispute or any legal or governmental actionproceeding, order and there has not been any Material Adverse Effect, or decree, andany development involving a prospective Material Adverse Effect, except in each case as otherwise stated thereindescribed in or contemplated by the General Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the date hereof, the properties of each of the Issuers there shall not have sustained been any loss or damage (whether or not insured) as a result decrease in the rating of any such occurrence, except of the Company’s debt securities (including the Notes) by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such interferencerating or of a possible change in any such rating that does not indicate the direction of the possible change.
(f) The Company shall have been advised by the National Association of Securities Dealers, loss or damage which would not, whether individually or Inc. that the Notes have been designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD relating to trading in the aggregate, have or PORTAL Market.
(g) The Notes shall be reasonably likely to have a Material Adverse Effecteligible for clearance and settlement through the Depositary.
(h) The On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received a certificate of such further certificates, documents or other information as they may have reasonably requested from the IssuersCompany. All opinions, dated certificates, letters and documents delivered pursuant to this Agreement will comply with the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except provisions hereof only if they are reasonably satisfactory in all material respects to the case of any Issuer organized under Initial Purchasers and Counsel for the laws of Initial Purchasers. The Company shall furnish to the Netherlands, in which case, Initial Purchasers such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters and documents in such quantities as the effect that:Initial Purchasers and Counsel for the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Alliance One International, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received opinionsthe opinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of each of Linklaters (US i) Jenner & Block LLP, counsel for the Company, in form and UK law); De Brauw Blackstone Westbroek N.V.; substance reasonably satisfactory to counsel for the Initial Purchaser, and substantially as set forth in Annex B hereto and (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg ii) Winston & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or the Guarantors, as the case may be, in each caseCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers Purchaser, and substantially as set forth in their reasonable discretionAnnex C hereto.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received an the opinion, in form and substance reasonably satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersPurchaser, 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, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchaser with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchaser shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct correct, in all material respects, on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects; the statements of any Authorized Person the Company’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct correct, in all material respects, on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers Purchaser shall have received a certificate of from the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons its (except in the case of i) Chief Executive Officer, President or any Issuer organized under the laws of the NetherlandsSenior Vice President or executive officer and (ii) Chief Financial Officer, in which caseController, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), Treasurer or principal financial or accounting officer to the effect that to such officers’ knowledge after due inquiry:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects, and the Company and the Guarantors 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or any Guarantor, that:, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Company and the Guarantors, and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchaser shall have received a board resolution and an officer’s certificate in compliance with the requirements set forth in Section 2.15 of the Indenture.
(j) The Notes shall be eligible for clearance and settlement through The Depository Trust Company. On or before the Closing Date, the Initial Purchaser and counsel for the Initial Purchaser shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 Purchaser and counsel for the Initial Purchaser. The Company and the Guarantors shall furnish to the Initial Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received opinions, dated as of (i) the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Locke Liddell & Sapp LLP, ▇▇▇▇se▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuershe Company, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, to the effect set forth in Exhibit A, (ii) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Meilicke Hoffman & Partn▇▇, ▇▇▇ma▇ ▇▇▇▇sel to the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, to the effect set forth in Exhibit B, (iii) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Bech-Bruun Dragsted Law F▇▇▇, ▇▇▇▇sh counsel to the Company, in form and substance reasonably satisfactory to the Initial Purchasers Purchaser, to the effect set forth in their reasonable discretion.Exhibit B, (iv) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Narbarro Nathanson, United Kingdom ▇▇▇▇▇▇▇ ▇o the Company, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect set forth in Exhibit B, and (v) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of MB & Associes, French counsel to the Company, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect set forth in Exhibit B.
(cb) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Milbank, TweedCahill Gordon & Reindel L▇▇, ▇▇▇▇▇▇▇ & for ▇▇▇ ▇▇▇▇, counsel for the Initial Purchasersitial Purchaser, 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, Milbank, Tweed, Cahill Gordon & Reindel ▇▇▇ ▇▇▇ll ▇▇▇▇ & ▇▇▇▇▇▇ shall have received ceived and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof no later than November 23, 2004 and as of the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser.
(ed) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person the Company's officers made pursuant to in any certificate signed by them delivered on or as of the Closing Date 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 Company shall have performed in all material respects all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)Offering 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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, organized labor dispute, labor slowdown or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers Purchaser shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer or any President or Vice President and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)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 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;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at the Closing Date.
(i) On or before the Closing Date, the Company shall have caused to be delivered the following documents and instruments with regard to the Collateral:
(i) to the Trustee (with a copy to the Initial Purchaser), evidence of all registrations or filings in each of the offices where such registrations or filings are necessary or, in the opinion of the Initial Purchaser, desirable to perfect the Liens created or intended to be created thereby;
(ii) to the Initial Purchaser and the Trustee, evidence satisfactory to them of the payment of all filing fees and taxes in connection with the filings and registrations contemplated in clause (i) above and acknowledgment copies of all such filings; and
(iii) to the Initial Purchaser and the Trustee, evidence as may be reasonably requested that all other actions necessary to perfect and, subject to Liens expressly permitted to exist by the terms of the applicable Security Document, protect the Liens created or intended to be created by the Security Documents have been taken. On or before the Closing Date, the Initial Purchaser and counsel for the Initial Purchaser shall have received from the Company such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 Purchaser and counsel for the Initial Purchaser. The Company shall furnish to the Initial Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be hereunder are subject to the satisfaction accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained in Section 1 hereof or waiver in certificates of any officer of the Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following conditions on or prior to the Closing Dateadditional terms and conditions:
(a) On the Closing Date, the no Initial Purchasers Purchaser shall have received opinionsdiscovered 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 fact which, dated as in the reasonable opinion of the Closing Date and addressed counsel to the Initial Purchasers, 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) on each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Delivery Date, ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, 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, substantially in the form of Annex 1 attached hereto;
(Maltese law); Stroeterc) on each Delivery Date, Stoel Rives LLP shall have furnished to the Initial Purchasers their written opinion, as special Oregon counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, substantially in the form of Annex 2 attached hereto;
(d) on each Delivery Date, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, in-house legal special patent counsel for to the IssuersCompany, in form and substance satisfactory shall have furnished to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the written opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial PurchasersPurchasers and dated such Delivery Date, substantially in the form of MilbankAnnex 3 attached hereto;
(e) on each Delivery Date, TweedAKD ▇▇▇▇▇▇▇ van ▇▇▇▇▇▇ N.V., special Netherlands counsel to the Company, shall have furnished to the Initial Purchasers their written opinion, addressed to the Initial Purchasers and dated such Delivery Date, substantially in the form of Annex 4 attached hereto;
(f) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, shall have furnished to the Initial Purchasers their written opinion, as counsel for to the Initial Purchasers, 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, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Delivery Date, in form and substance satisfactory to counsel for the Initial Purchasers.;
(eg) The representations and warranties of at the Issuers contained in this Agreement Delivery Date, there shall be true and correct on and as of not have been, since the date hereof and on and or since the respective dates as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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 shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described which information is given in the Disclosure Package or the Final Offering Memorandum (exclusive of any amendment amendments or supplement supplements thereto after the date hereof), subsequent to the date Applicable Time), any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the most recent financial statements in such Memorandum (Company and its subsidiaries considered as one enterprise, whether or not audited), there shall have been no event or developmentarising in the ordinary course of business, 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers Representative shall have received a certificate of the IssuersChief Executive Officer and President of the Company and of the Executive Vice President and Chief Financial Officer of the Company, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws as of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Delivery Date, to the effect that:that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Delivery Date, and (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Delivery Date;
(h) at the time of the execution of this Agreement, the Representative shall have received from Deloitte & Touche LLP a letter dated such date, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Initial Purchasers containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum;
(i) at the Delivery Date, the Representative shall have received from Deloitte & Touche LLP a letter, dated as of the Delivery Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Delivery Date;
(j) 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;
(k) the Company and the Representative shall have executed and delivered the Registration Rights Agreement (in form and substance reasonably satisfactory to the Initial Purchasers) and the Registration Rights Agreement shall be in full force and effect;
(l) at the First Delivery Date, the Notes shall have been approved for designation as a PORTAL security;
(m) subsequent to the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Notes, if any, by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes;
(n) on or prior to the date of this Agreement, the Representative shall have received an agreement substantially in the form of Exhibit A attached hereto signed by the persons listed in Schedule IV attached hereto, and shall have received an agreement substantially in the form of Exhibit B attached hereto signed by Philips Business Electronics International B.V.; and
(o) at the Delivery Date, counsel for the Initial Purchasers shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated, 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 Notes as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchasers. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representative by notice to the Company at any time at or prior to the applicable Delivery Date, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 7, 8 and 9 shall survive any such termination and remain in full force and effect.
Appears in 1 contract
Sources: Purchase Agreement (Fei Co)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of (i) Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel for the Issuers, in substantially the form attached hereto as Annex A; (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in-house legal special Bermuda counsel for the IssuersCompany, in substantially the form attached hereto as Annex B; (iii) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special regulatory counsel for the Company, in substantially the form attached hereto as Annex C; (iv) White and Case LLP, special English counsel for the Company, in substantially the form attached hereto as Annex D; (v) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Company, in substantially the form attached hereto as Annex E; and (vi) ▇▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel for Intelsat Global Service Corporation, in substantially the form attached hereto as Annex F (except, if the Acquisition is not consummated on the Closing Date, the opinion expressed in paragraph (2) thereof may be delivered on the Acquisition Date), and, in each case, in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The Initial Purchasers shall have received from each of the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and the Parent Guarantor contained in this Agreement shall be true and correct on and as of the date hereof (but if specified to be given as of a specified date, shall be given as of such date) and on and as of the Closing Date as if made on and as of the Closing DateDate (but if specified to be given as of a specified date, shall be given as of such date); the statements of any Authorized Person 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 Company shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)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.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) 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), except as set forth in the Final Memorandum, the conduct none of Intelsat, Intelsat Bermuda or any of the Subsidiary Guarantors shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany and Parent Guarantor, dated the Closing Date, signed on behalf of each Issuer such entity by two Authorized Persons its Chairman of the Board, President or any Senior Vice President, to the effect that
(i) the representations and warranties of the Company and Parent Guarantor contained in this Agreement are true and correct on and as of the date hereof (but if specified to be given as of a specified date, shall be given as of such date) and on and as of the Closing Date (but if specified to be given as of a specified date, shall be given as of such date), and the Company and Parent Guarantor have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements, except as described in the Final Memorandum, 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).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement and Indenture executed by the Company and Parent Guarantor and, substantially concurrently or immediately following the consummation of the Acquisition, shall have received the Joinder Agreements and Supplemental Indenture executed by each Subsidiary Guarantor and such agreements shall be in full force and effect at all times from and after the Closing Date (except in the case of the Joinder Agreements and Supplemental Indenture, which shall be in full force and effect at all times from and after their execution).
(i) To the extent the Acquisition is substantially concurrently consummated on the Closing Date, the Issuers parties thereto shall have executed and delivered the Credit Documents and the Initial Purchasers shall have received copies thereof. To the extent the Acquisition is substantially concurrently consummated on the Closing Date, each condition to the closing contemplated by the Credit Documents (other than the issuance and sale of the Securities pursuant hereto) will, on or prior to the Closing Date, have been satisfied or waived. To the extent the Acquisition is substantially concurrently consummated on the Closing Date, there shall not exist at, and as of, the Closing Date (after giving effect to the transactions contemplated by this Agreement) any Issuer organized conditions that would constitute a default (or an event that with notice or the lapse of time, or both, would constitute a default) under the laws Credit Documents.
(j) To the extent the Acquisition is substantially concurrently consummated on the Closing Date, Holdings, the Parent Guarantor and the Company and the other parties thereto shall have executed and delivered the Acquisition Documents and the Initial Purchasers shall have received copies thereof. To the extent the Acquisition is substantially concurrently consummated on the Closing Date, each condition to the closing contemplated by the Acquisition Documents (other than the issuance and sale of the NetherlandsSecurities pursuant hereto and the initial borrowings under the Credit Documents) will, in which caseon or prior to the Closing Date, such certificate have been satisfied or waived.
(k) The Transactions shall be signed consummated in a manner consistent in all material respects with the description thereof in the Final Memorandum and (unless the Company executes and delivers the Escrow Agreement on the Closing Date) substantially concurrent with the purchase of the Securities by one Authorized Person who shall be the managing director of such Issuer)Initial Purchasers.
(l) At the Closing Date, to the effect that:extent the Acquisition is not substantially concurrently consummated, the Company, the Trustee and the Escrow Agent shall have entered into the Escrow Agreement. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 DBSI and counsel for the Initial Purchasers. The Company shall furnish to DBSI such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as DBSI shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Intelsat LTD)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be Notes are subject to the satisfaction or waiver accuracy, when made and on and as of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(i) The Initial Purchasers Purchaser shall have received opinions, dated as of the Closing Date opinions in form and addressed substance reasonably satisfactory to the Initial PurchasersPurchaser, dated the Closing Date, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇H▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); B▇▇▇▇, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of King & Wood Mallesons, counsel to the Company, with respect to Global Technology, Inc. and covering the matters set forth on Exhibit D hereto, and of M▇▇▇▇▇ and C▇▇▇▇▇ (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holdings, Ltd. and covering the legal matters set forth on Exhibit E hereto.
(ii) The Initial Purchaser shall have received an opinion of M▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On Purchaser, dated the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Initial Purchasers, 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, Milbank, Tweed, .
(iii) The Initial Purchaser shall have received from G▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from , independent registered public accountants for the Independent Accountants a comfort letter or letters dated Company, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser and counsel to the Initial Purchaser, letters dated the date hereof and the Closing Date confirming that is an independent registered public accountant 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 financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering Memorandum.
(eiv) The Initial Purchaser shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial 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, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchaser, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and 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 material statement 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 Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. 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, as of the Closing Date 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 in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package 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 issuance of the Securities or the Initial Purchaser’s activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Disclosure Package and the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and 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 material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fx) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities hereunder shall not be enjoined (temporarily as contemplated herein, or permanently) on in order to evidence the Closing Dateaccuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(gxii) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated At the Closing Date, signed on behalf the Company and the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws Common Stock issuable upon conversion of the NetherlandsNotes will be duly listed, subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in which case, all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Company shall furnish to the Initial Purchaser such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser 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 Securities shall, in their sole discretion, hereunder shall be subject to the satisfaction or waiver continuing accuracy of the representations and warranties of the Company 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, as the 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 obligations hereunder and to the following conditions further conditions:
(a) The Initial Purchasers shall not have advised the Company that the Offering Circular, or any supplement or amendment thereto, 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, in light of the circumstances under which they were made when the Offering Circular is delivered, 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.
(b) On or prior to the Closing Date:
(a) On the Date and each Option Closing Date, if any, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); from ▇▇▇▇▇▇▇▇▇ ▇▇▇, Will & ▇▇▇▇▇ 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 Purchasers may request.
(Maltese law); Stroeterc) On the Closing Date and each Option Closing Date, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)if any, the Initial Purchasers shall have received an opinion of Proskauer Rose LLP, counsel for to the Issuer and/or Company, dated the GuarantorsClosing Date, or such Option Closing Date, as the case may be, in each case, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, in their reasonable discretionsubstantially the form attached hereto as Annex II;
(d) Proskauer Rose LLP shall state in the opinion letter contemplated by Section 6(c) that such counsel has participated in conferences with officers and other representatives of the Company and the Subsidiaries, representatives of the independent public accountants for the Company and the Subsidiaries and representatives of Initial Purchasers, 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, on the basis of the foregoing, no facts have come to the attention of such counsel which has caused 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 need express no opinion or belief with respect to the financial statements and related notes, the pro forma financial information, or any other financial, statistical or accounting data included in the Offering Circular or excluded therefrom;
(e) On or prior to the Closing Date and each Option Closing Date, if any, ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇ shall have been furnished such documents and certificates as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in Section 6(b) above or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions of the Company herein contained.
(bf) On and as of the Closing Date and each Option Closing Date, if any: (i) there shall have been no material adverse 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 or contemplated 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 order suspending or preventing the sale of the Securities shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened or, to the knowledge of the Company, contemplated by the Commission or any state regulatory authority.
(g) On the Closing Date and each Option Closing Date, if any, the Initial Purchasers shall have received an opiniona certificate of the Company signed on behalf of the Company by the principal executive officer and by the chief financial or chief accounting officer of the Company, in their capacities as such, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the or such Option Closing Date, as the Initial Purchasers shall have received the opinioncase may be, in form and substance satisfactory to the Initial Purchaserseffect that each of such persons has carefully examined the Offering Circular, dated as of this Agreement, the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof Indenture and the Closing DateRegistration Rights Agreement, in form and substance satisfactory to counsel for that:
i) the Initial Purchasers.
(e) The representations and warranties of the Issuers contained Company in this Agreement, the Indenture and the Registration Rights Agreement shall be are true and correct on and as of the date hereof and on and as of the Closing Date in all material respects, as if made on and as of the Closing Date; the statements of any Authorized Person 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 Date or such Option Closing Date; , as the Issuers shall have performed case may be, and the Company has complied with all agreements and covenants and agreements and satisfied all conditions contained in this Agreement, the Indenture and the Registration Rights Agreement on their its part to be performed or satisfied hereunder at or prior to the Closing Date or Option Closing Date; and, except as described in the Memorandum (exclusive case may be;
ii) no stop order suspending the qualification or exemption from qualification of any amendment or supplement thereto after the date hereof)Securities shall have been issued and no proceedings for that purpose shall have been commenced or, subsequent to the knowledge of the Company, be contemplated;
iii) since the date of the most recent financial statements included in such Memorandum 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 amendment or supplement thereto 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 when the Offering Circular is delivered, not misleading; and
v) subsequent to the respective dates as of which information is given in the Offering Circular: (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 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 change in the capital stock (other than pursuant to the Company's 1996 Stock Incentive Plan) or the long term debt of the Company or any of the Subsidiaries; (e) neither the Company nor any of the Subsidiaries has sustained any material loss or damage to its property or assets, whether or not audited)insured; (f) there is no litigation which is pending or, there shall have been no event to the Company's knowledge, threatened or developmentcontemplated against the Company, and no information shall have become knownany of the Subsidiaries or any affiliated party of any of the foregoing which would, thatif decided adversely, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall Effect and which is required to be set forth in an amended or supplemented Offering Circular which has not be enjoined (temporarily or permanently) on the Closing Date.
been set forth; and (g) Subsequent there has occurred no event which would be required to be set forth in an amended or supplemented prospectus if the Offering Circular were a prospectus included in a registration statement on Form S-1, which has not been set forth in an amendment or supplement to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse EffectOffering Circular.
(h) The On or before the date hereof the Initial Purchasers shall have received a certificate letter, dated such date, addressed to the Initial Purchasers in form and substance satisfactory in all respects to the Initial Purchasers and ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, from Coopers & ▇▇▇▇▇▇▇ L.L.P.
(i) On the Closing Date and each Option Closing Date, if any, the Initial Purchasers shall have received from Coopers & ▇▇▇▇▇▇▇ L.L.P. a letter, dated as of the IssuersClosing Date or such Option Closing Date, as the case may be, to the effect that they reaffirm their statements made in the letter furnished pursuant to Section 6(h), except that the specified date referred to shall be a date not more than five days prior to the Closing Date or such Option Closing Date, as the case may be, and to the further effect that they have carried out procedures as specified in their letter furnished pursuant to Section 6(h) with respect to certain amounts, percentages and financial information as specified by the Initial Purchasers 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 their letter furnished pursuant to Section 6(h). If there is more than one Option Closing, the obligations of the Company pursuant to this Section 6(i) shall be conditioned upon the payment by the Initial Purchasers of the fees and expenses of Coopers & ▇▇▇▇▇▇▇ L.L.P. incurred to provide the foregoing letter at any Option Closing after the Initial Option Closing.
(j) On the Closing Date and each Option Closing Date, if any, there shall have been duly tendered to the Initial Purchasers the appropriate number of shares of Preferred Stock.
(k) The Preferred Stock and the Notes 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 Nasdaq National Market at any time.
(m) 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, the American Stock Exchange or the over-the-counter market shall have been suspended, or minimum prices shall have 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 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 judgment of the Initial Purchasers, impracticable or inadvisable to proceed with the offering or the delivery of the Preferred Stock on the terms and in the manner contemplated in the Offering Circular.
(n) The Company and the Initial Purchasers shall have executed and delivered the Registration Rights Agreement on the date of this Agreement.
(o) The Certificate of Designations shall have been duly executed and filed by the Company with the Secretary of State of the State of Delaware.
(p) If any event shall have occurred that requires the Company under Section 4(c) hereof to prepare an amendment or supplement to the Offering Circular, such amendment or supplement shall have been prepared, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof delivered to the Initial Purchasers.
(q) There shall not have occurred 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 Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the reasonable and good faith judgment of the Initial Purchasers would materially impair the ability of the Initial Purchasers to purchase, hold or effect resales of the Preferred Stock as contemplated hereby.
(r) On or prior to the Closing Date and each Option Closing Date, if any, the Initial Purchaser shall have received a certificate signed on behalf of the Company by the secretary of the Company, in his capacity as such, dated the Closing Date or such Option Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in as the case may be, as to:
i) the absence of any Issuer organized under contemplated proceeding for the merger, consolidation, liquidation or dissolution of the Company or any Subsidiary, as the case may be, or the sale of all or substantially all of its assets;
ii) the due adoption and full force and effect of the by-laws of the NetherlandsCompany (with a copy of the by-laws attached);
iii) resolutions adopted by the Board of Directors of the Company and/or a committee thereof authorizing the Offering and the consummation of the transactions contemplated by this Agreement, the Indenture, the Certificate of Designations and the Registration Rights Agreement (with copies of such resolutions attached); and
iv) the incumbency, authorization and signatures of those officers of the company signing this Agreement, the Registration Rights Agreement and/or any certificate delivered at Closing. All opinions, letters, evidence and certificates mentioned above or elsewhere in which case, such certificate this Agreement shall be signed by one Authorized Person who shall deemed to be in compliance with the managing director of such Issuer), provisions hereof only if they are in form and substance reasonably satisfactory to the effect that:Initial Purchasers. If any condition to the Initial Purchasers' obligations hereunder to be fulfilled prior to or at the Closing Date or the relevant Option Closing Date, as the case may be, is not so fulfilled, the Initial Purchasers may terminate their obligations pursuant to Section 9 or, if the Initial Purchasers so elect, they may waive any such conditions which have not been fulfilled or extend the time for their fulfillment.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, Bonds shall be subject to the satisfaction or waiver accuracy on the date hereof and on the Closing Date of the following conditions representations and warranties made herein on the part of the Funding Corporation and the Company and of any certificates furnished by the Funding Corporation or prior the Company on the Closing Date and to the Closing Datefollowing conditions:
(a) On At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order or orders of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have received opinionsfrom Wise Carter Child & Caraway, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law)Professional Associ▇▇▇▇▇; De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg ▇▇▇▇en Reid & Co. (certain tax matters); ▇▇▇▇▇▇ LLP; and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Friday, Eldredge & ▇▇▇▇▇, ▇▇▇, each as counsel to the Co▇▇▇▇▇; ▇nd ▇▇▇▇▇n Reid & Priest LLP, as counsel to the Fund▇▇▇ ▇▇▇▇▇▇▇▇ tion, opinions, dated the Closing Date, substantially in the forms set forth in Exhibits A, B, C and D hereto, respectively, (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); i) with such changes therein as may be agreed upon by the Company and Templars (Nigerian law), counsel the Initial Purchasers with the approval of Counsel for the Issuer and/or Initial Purchasers, and (ii) if the Guarantors, as the case may be, in each case, in form and substance satisfactory Offering Memorandum shall be supplemented after being furnished to the Initial Purchasers for use in their reasonable discretionoffering the Bonds and prior to the Closing Date, with changes therein to reflect such supplementation.
(bc) On At the Closing Date, the Initial Purchasers shall have received from Counsel for the Initial Purchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit E hereto, with such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the Closing Date.
(d) On or prior to the date this Purchase Agreement became effective, the Initial Purchasers shall have received from Deloitte & Touche LLP, the Company's independent certified public accountants (the "Accountants"), a letter dated the Closing Date and addressed to the Initial PurchasersPurchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and 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 applicable published rules and regulations thereunder; (iii) on the basis of performing the procedures specified by the AICPA for a review of interim financial information as described in SAS No. 100, in-house legal counsel Interim Financial Information, on the latest unaudited financial statements, if any, incorporated by reference in the Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2003 to a specified date not more than five days prior to the date of such letter, and inquiries of officers 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 they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the Issuerspurposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (C) at the date of the latest available balance sheet read by the Accountants, and at a subsequent specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholder's equity, in form each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long- term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and substance satisfactory specifying the amount thereof; and (D) for the period from the closing date of the most recent income statement incorporated by reference in the Offering Memorandum to the Initial Purchasers closing date of the latest available income statement read by the Accountants, there were any decreases, as compared to the corresponding period in their reasonable discretionthe preceding year, in operating revenues, operating income or net income, except in all instances for decreases which the Offering Memorandum discloses have occurred or may occur or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and
(iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company set forth in the Offering Memorandum, and set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records 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 do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement.
(ce) On At the Closing Date, the Initial Purchasers shall have received (i) certificates of the opinionFunding Corporation and the Company, in form respectively, signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of each of the Funding Corporation and substance satisfactory the Company, respectively, to the Initial Purchasers, dated as of effect that (A) the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers Funding Corporation and the Company, as the case may be, contained herein are true and correct, and (B) each of the Funding Corporation and the Company has performed and complied with all agreements and conditions in this Purchase Agreement 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 any Authorized Person 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 shall have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder complied with at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), 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 ii) a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuerscertificate, dated the Closing Date, Date and signed on behalf by the President or a Vice President of each Issuer by two Authorized Persons (except the Company that since the most recent date as of which information is given in the case of Offering Memorandum, as it may then be amended or supplemented, there has not been any Issuer organized under material adverse change in the laws business, property or financial condition of the NetherlandsCompany and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in which caseeach case other than as referred to in, or contemplated by, such certificate shall Offering Memorandum, as it may then be amended or supplemented, and (iii) a certificate, dated the Closing Date and signed by one Authorized Person who shall be the managing director President, a Vice President, the Treasurer or an Assistant Treasurer of such IssuerEntergy Corporation ("Entergy"), to the effect that:that since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of Entergy and its subsidiaries considered as a whole.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Obligors of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinionsan opinion of counsel to the Obligors in form and substance satisfactory to the Initial Purchasers and Cahill Gordon & Reindel, dated as of the Closing Date and addressed counsel to the Initial Purchasers, da▇▇▇ ▇▇▇ ▇▇▇▇ing ▇▇▇▇, of each of Linklaters (US Dickstein Shapiro Morin & Oshinsky LLP, substantially in t▇▇ ▇▇▇▇ ▇f ▇▇▇▇▇▇▇ B ▇▇▇▇to. ▇▇ ▇▇▇▇ering such opinion, Dickstein Shapiro Morin & Oshinsky LLP shall have received and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ma▇ ▇▇▇▇ ▇▇▇▇ su▇▇ ▇▇rti▇▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchasers and Cahill Gordon & Reindel, counsel to the Initial Purchasers, as ▇▇▇▇ ▇▇▇ ▇▇▇son▇▇▇▇ ▇▇quest to pass upon such matters.
(ii) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Cahill Gordon & Reindel, counsel to the Initial Purchasers, ▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇t t▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as sufficiency of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇ Reindel shall have received and may rely upon such certificates ▇▇▇▇ ▇▇▇▇ ▇ert▇▇▇▇▇▇▇s and other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering their opinion, Cahill Gordon & Reindel may state that their opinion is limit▇▇ ▇▇ ▇▇▇▇▇▇▇ of ▇▇▇ ▇▇rk, Delaware corporate and federal law.
(diii) The Initial Purchasers shall have received from Coopers & Lybrand L.L.P. and KPMG Peat Marwick LLP, independent public accou▇▇▇▇▇▇ for the Independent Accountants a comfort letter or St. Louis Station and Channel 32, Incorporated, respectively, "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and Cahill Gordon & Reindel, counsel for to the Initial Purchasers.
(e▇▇) The representations ▇▇▇ re▇▇▇▇▇▇▇ations and warranties of the Issuers Obligors contained in this Agreement 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 any Authorized Person 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 Obligors shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(a) There shall not have been any change in the capital stock or partners or members equity of the Company or any of the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company, the Subsidiaries and the Acquisition Stations shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, other than those reflected in the Final Memorandum.
(vi) None of the Transactions shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order with respect thereto shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Obligors or the Acquisition Stations or against the Initial Purchasers relating to any of the Transactions.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries or any of the Acquisition Stations that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Obligors and their counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Obligors set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Obligors have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement and the Final Memorandum and the consummation of the Transactions 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 threatened against any of the Obligors relating to the issuance of the Securities or in connection with any of the other Transactions.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final Memorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries or any Acquisition Station that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(a) There has not been any change in the capital stock or members or partners equity of the Company or any of the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company, the Subsidiaries, and the Acquisition Stations have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to our Acquisition, other than those reflected in the Final Memorandum.
(ix) Each of the Acquisition Agreements and the St. Louis LMA shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or waivers of any provision thereof since the date of this Agreement (unless consented to in writing by the aggregate, has or would be reasonably likely to have a Material Adverse EffectInitial Purchasers).
(fx) The sale All proceedings taken in connection with the issuance of the Securities hereunder and the transactions contemplated by this Agreement and the other Basic Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchasers and counsel to the Initial Purchasers.
(gxi) Subsequent ACME Parent shall have contributed and assigned to the date Company all of ACME Parent's assets and rights relating to the MemorandumAcquisition Agreement, the conduct of St. Louis LMA and the business Acquisition Stations pursuant to documents satisfactory to the Initial Purchasers and operations of each of their counsel.
(xii) The Company shall have received at least $59.9 million aggregate cash proceeds from the Issuers Intermediate Equity Contribution and the Parent Equity Contribution.
(xiii) There shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action"nationally recognized statistical rating organiza- tion," as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers shall Company or Acme Intermediate, or (B) it is reviewing its rating assigned to any debt securities of the Company or Acme Intermediate with a view to possible downgrading, or with negative implications, or direction 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectdetermined.
(hxiv) The Initial Purchasers shall have received a certificate of the Issuers, dated Registration Rights Agreement executed by the Obligors and such agreement shall be in full force and effect at all times from and after the Closing Date, signed on behalf of each Issuer by two Authorized Persons .
(except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate xv) The Obligors shall have furnished or caused to be signed by one Authorized Person who shall be the managing director of such Issuer), furnished to the effect that:Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, Bonds shall be subject to the satisfaction or waiver accuracy on the date hereof and on the Closing Date of the representations and warranties made herein on the part of the Company and of any certificates furnished by the Company on the Closing Date and to the following conditions on or prior to conditions: At the Closing Date:
(a) On , there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Holding Company Act authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase ▇▇▇▇▇▇▇▇▇.▇▇ the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); from ▇▇▇▇ ▇. ▇▇▇▇▇▇ , Esq., Senior Counsel-Corporate and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇Securities of Entergy Services, Inc., and ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP opinions, dated the Closing Date, substantially in the forms set forth in Exhibits A and B hereto, respectively (it being understood that ▇▇. ▇▇▇▇ (Maltese law); Stroeter, may rely on an opinion of ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel L.L.P. as to matters in his opinion relating to Texas law provided that the Initial Purchasers are addressees of, or are otherwise entitled to rely on, such opinion), (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Initial Purchasers, with respect and (ii) if the Offering Memorandum shall be supplemented after being furnished to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering for use in offering the Bonds, with changes therein to reflect such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇.▇▇ the Closing Date, the Initial Purchasers shall have received from Counsel for the Initial Purchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the Closing Date.On or prior to the date this Purchase Agreement becomes effective, the Initial Purchasers shall have received from Deloitte & Touche LLP, the Company's independent registered public accountants (the "Accountants"), a letter dated the date hereof and addressed to the Initial Purchasers to the effect that (i) they are independent registered 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, the financial statements and financial statement schedules audited by them and 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 applicable published rules and regulations thereunder; (iii) on the basis of performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 100, Interim Financial Information, on the latest unaudited financial statements, if any, incorporated by reference in the Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2004 to a specified date not more than five days prior to the date of such letter, and inquiries of officers 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 they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (C) at the date of the latest available balance sheet read by the Accountants, and at a subsequent specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net current assets or stockholders' equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may rely upon occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such certificates letter, identifying the same and specifying the amount thereof; and (D) for the period from the closing date of the most recent income statement incorporated by reference in the Offering Memorandum to the closing date of the latest available income statement read by the Accountants there were any decreases, as compared to the corresponding period in the preceding year, in operating revenues, operating income or net income, except in all instances for decreases which the Offering Memorandum discloses have occurred or may occur or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records 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 do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in ▇▇▇▇▇▇▇▇▇.▇▇ the Closing Date, the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the Company, to the effect that (i) as of the Closing Date, the representations and warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Purchase Agreement to be performed or complied with by the Company at or prior to the Closing Date and (iii) since the most recent date as of which information is given in the Offering Memorandum, as it may reasonably request then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in each case other than as referred to pass upon such mattersin, or contemplated by, the Offering Memorandum, as it may then be amended or ▇▇▇▇▇▇▇▇▇▇▇▇.
(d) The ▇▇ the Closing Date, the Initial Purchasers shall have received duly executed counterparts of the Supplemental ▇▇▇▇▇▇▇▇▇.▇▇ the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter, dated the Closing Date, confirming, as of a date not more than five days prior to the Closing Date, the statements contained in the letter or letters dated delivered pursuant to Section 6(d) hereof.Between the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
no default (e) The representations and warranties of the Issuers contained in this Agreement 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 any Authorized Person made pursuant to any certificate delivered in accordance or an event which, with the provisions hereof shall be true and correct on and giving of notice or the passage of time or both, would constitute a default) under the Mortgage (as of the date made and on and as of the Closing Date; the Issuers defined therein) shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at occurred.On or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate from the Company evidence reasonably satisfactory to the Initial Purchasers that the Bonds have received ratings of Baa3 or better from ▇▇▇▇▇'▇ Investors Service, Inc. and BBB+ or better from Standard & Poor's Ratings Services.Between the Issuers, dated date hereof and the Closing Date, signed on behalf neither ▇▇▇▇▇'▇ Investors Service, Inc. nor Standard & Poor's Ratings Services shall have lowered its rating of each Issuer by two Authorized Persons (except any of the Company's outstanding first mortgage bonds in any respect.Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, which, in the case reasonable opinion of the Representatives materially impairs the investment quality of the Bonds.All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance to Counsel for the Initial Purchasers.The Company shall furnish the Initial Purchasers with additional conformed copies of such opinions, certificates, letters and documents as may be reasonably requested. If any of the conditions specified in this Section 6 shall not have been fulfilled, this Purchase Agreement may be terminated by the Representatives upon notice thereof to the Company. Any such termination shall be without liability of any Issuer organized under the laws party to any other party, except as otherwise provided in paragraph (d) of the Netherlands, Section 5 and in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:Section 9.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions Firm Notes on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed the Optional Notes on the Additional Closing Date, if any, is subject to the accuracy of the representations and warranties contained herein, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchasers, Purchaser:
(i) The Initial Purchaser shall have received an opinion of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for to the Issuer and/or the Guarantors, as the case may be, in each case, Company in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing DatePurchaser and Cahill Gordon & Reindel, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed counsel to the Initial PurchasersPurchaser, of d▇▇▇▇ ▇▇▇ ▇▇▇▇ing ▇▇▇▇, in-house legal counsel for and again on the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Additional Closing Date, if any, of Troutman Sanders LLP, substantially in the Initial Purchasers form of Exhibit A ▇▇▇▇▇▇. ▇▇ ▇▇▇▇ering such opinion, Troutman Sanders LLP shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, may rely upon s▇▇▇ ▇▇▇▇i▇▇▇▇▇▇▇ and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and Cahill Gordon & Reindel, counsel to the Initial Purchaser, a▇ ▇▇▇▇ ▇▇▇ ▇▇asonably ▇equest to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, and again on the Additional Closing Date, if any, of Cahill Gordon & Reindel, counsel to the Initial Purchaser, with ▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to ▇ ▇o t▇▇ ▇▇▇▇iciency 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, Milbank, Tweed, ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇ Reindel shall have received and may rely upon such certificates and upo▇ ▇▇▇▇ ▇▇▇▇▇▇ica▇▇▇ ▇▇▇ other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering their opinion, Cahill Gordon & Reindel may state that their opinion is limited to ▇▇▇▇▇▇s o▇ ▇▇▇ ▇ork, Delaware corporate and federal law.
(diii) The Initial Purchasers On the date of this Agreement and on the Closing Date and again on the Additional Closing Date, if any, Ernst & Young LLP shall have received from furnished to the Independent Accountants Initial Purchaser, at the request of the Company, a comfort letter or letters letter, dated the date hereof respective dates of delivery thereof and addressed to the Closing DateInitial Purchaser, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser, 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 the Final Circular; provided, that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use a "cutoff date no more than three business days prior to such Closing Date or such Additional Closing Date, as the case may be.
(eiv) The representations and warranties of the Issuers Company contained in this Agreement 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, and again on the Additional Closing Date, if any; the statements of any Authorized Person 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 Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except or the Additional Closing Date, as described the case may be.
(v) Subsequent to the execution and delivery of this Agreement and since the date of the most recent financial statements in the Memorandum Final Circular (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum ) (whether or not audited), there shall have been a) no event or development, and no information condition of a type described in Section 2(c) hereof shall have become knownoccurred or shall exist, which event or condition is not described in the Circular (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Initial Purchaser makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement and the Circular; (b) 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 securities of the Company or any of its Subsidiaries by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and (c) there shall not have occurred any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Circular untrue or that, individually or in the aggregateopinion of the Company and its counsel or the Initial Purchaser and its counsel, has requires the making of any addition to or would change in the Final Circular in order to state a material fact required by any applicable law, rule or regulation to be reasonably likely stated therein or necessary in order to have a Material Adverse Effectmake the statements made therein not misleading.
(fvi) The None of the issuance and sale of the Securities hereunder Notes pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall not 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, order, decree or other administrative proceeding instituted or threatened against the Company or against the Initial Purchaser relating to the issuance of the Notes or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement, the Final Circular or the other Transaction Documents.
(vii) The Initial Purchaser shall have received on and as of the Closing Date and the Additional Closing Date, if any, a certificate of the chief financial officer of the Company and one additional senior executive officer of the Company who is satisfactory to the Initial Purchaser (a) confirming that such officers have carefully reviewed the Final Circular and, to the best knowledge of such officers, the representation of the Company set forth in Section 2(a) hereof is true and correct, (b) confirming that the other representations and warranties of the Company in this Agreement are true and correct and 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 such Closing Date and Additional Closing Date, (c) to the effect set forth in paragraphs (iv), (v) and (vi) of this Section 7; and (d) confirming that, at the Closing Date, or the Additional Closing Date, as the case may be, and, after giving effect to the consummation of the transactions contemplated by this Agreement or the other Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(viii) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(ix) All proceedings taken in connection with the issuance of the Notes and the transactions contemplated by this Agreement, the other Transaction Documents and all documents and papers relating thereto shall be reasonably 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.
(x) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Circular.
(xi) On or before the Closing Date, the Initial 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.
(gxii) Subsequent The Company shall have furnished or caused to be furnished to the date Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested.
(xiii) 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 MemorandumClosing Date or the Additional Closing Date, as the conduct case may be, prevent the issuance or sale of the business Notes; and operations no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Notes.
(xiv) The Initial Purchaser shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the Company and its Significant Subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Initial Purchaser may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(xv) The "lock-up" agreements, each substantially in the form of Exhibit B hereto, between the Initial Purchaser and each of the Issuers shall not have been interfered with by strikeshareholders, labor dispute, slowdown, work stoppage, 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 each officers and directors of the Issuers shall not have sustained any loss Company listed on Exhibit B-l hereto relating to sales and certain other dispositions of shares of Stock or damage (whether or not insured) certain other securities, delivered to the Initial Purchaser as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuersdate hereof, dated shall be in full force and effect on the Closing Date or the Additional Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in as the case of any Issuer organized under may be. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the laws of provisions hereof only if they are reasonably satisfactory in all material respects to the Netherlands, in which case, Initial Purchaser and counsel to the Initial Purchaser. The Company shall furnish to the Initial Purchaser such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Arris Group Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchasers Purchaser to purchase and pay for the Securities shallNotes shall be subject, in their sole each such Initial Purchaser's discretion, be subject to the satisfaction or waiver accuracy of the following conditions representations and warranties of the Company contained herein as of the Closing Date as if made on or prior to and as of the Closing Date, to the accuracy of the statements of the Company's officers and representatives 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 The Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each casean opinion, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinionPurchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, in-house legal P.A., counsel for the IssuersCompany, substantially in the form and substance satisfactory to the Initial Purchasers in their reasonable discretionof ANNEX A hereto.
(cb) On the Closing Date, the The Initial Purchasers shall have received the an opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of MilbankWeil, Tweed, Gotshal & ▇▇▇▇▇▇ & ▇▇▇▇▇▇LLP, counsel for 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 , and the Company shall furnish to such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon counsel such certificates and other documents and information as it they may reasonably request for the purpose of enabling them to pass upon such matters.
(dc) The Initial Purchasers shall have received from the Independent Accountants a Deloitte & Touche LLP comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers.
(d) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), except as set forth in the Offering Memorandum (i) the Company, the Subsidiaries or the Camping World Subsidiaries shall not have incurred any liabilities or obligations, direct or contingent, that are material to the Company, the Subsidiaries and the Camping World Subsidiaries, taken as a whole, or entered into any transactions that are material to the business, condition (financial or other) or results of operations of the Company, the Subsidiaries and the Camping World Subsidiaries, taken as a whole, and there shall not have been any change in the capital stock or long-term indebtedness of the Company that is material to the business, condition (financial or other) or results of operations of the Company, the Subsidiaries and the Camping World Subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective change, in or affecting the general affairs, condition (financial or other), results of operations, business, properties or assets of the Company, the Subsidiaries and the Camping World Subsidiaries, taken as a whole, the effect of which, in any case referred to in this clause (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impractical or inadvisable to proceed with the purchase and the delivery of the Notes as contemplated by the Offering Memorandum.
(e) No order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(f) The Company shall have furnished to the Initial Purchasers a certificate of the Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Offering Memorandum, any amendment or supplement to the Offering Memorandum, this Agreement and the other Transaction Documents and that:
(i) The representations and warranties of the Issuers Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied on or prior to the Closing Date;
(ii) Since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(g) After the execution and delivery of this Agreement, there shall not have been (i) any downgrading by Standard & Poor's Corporation ("S&P") in the rating of the Notes; (ii) any downgrading by ▇▇▇▇▇'▇ Investors Service Inc. ("MOODY'S") in the rating of the Notes; or (iii) any notice given by S&P or Moody's of any intended or potential downgrading in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) On the Closing Date, the Initial Purchasers shall have received the Notes Registration Rights Agreement substantially in the form of ANNEX B hereto executed by the Company and AGI and such agreement shall be in full force and effect at all times from and after the Closing Date.
(i) 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.
(j) The Initial Purchasers shall have received evidence, reasonably satisfactory to them, that (i) the Camping World Acquisition shall have been consummated in accordance with the terms of the CWI Stock Purchase Agreement and (ii) the initial funding shall have occurred under the Credit Agreement and AGI shall have received gross cash proceeds therefrom sufficient to effect the Camping World Acquisition and the replacement of the existing AGI senior secured financing facility with the senior secured financing facility provided under the Credit Agreement as set forth in the Offering Memorandum.
(k) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(l) 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; the statements of any Authorized Person 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 Issuers Company shall have performed in all material respects all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)Offering 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(hm) The Initial Purchasers shall have received a certificate copies of the Issuersexecuted CWI Stock Purchase Agreement and the executed Credit Agreement, dated certified by the Secretary or an Assistant Secretary of the Company as being true, correct and complete. The Credit Agreement shall be in form and substance reasonably satisfactory to the Initial Purchasers.
(n) On or before the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of Initial Purchasers shall have received such further certificates, documents or other information as it may have reasonably requested from the Company. If any Issuer organized under the laws of the Netherlandsconditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in which casethis Agreement shall not be satisfactory in form and substance to the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled on, or any time prior to, the Closing Date by the Initial Purchasers. Notice of such certificate cancellation shall be signed by one Authorized Person who given to the Company in accordance with Section 13. The Company shall be furnish to the managing director Initial Purchasers such conformed copies of such Issuer)opinions, to certificates, letters and documents in such quantities as the effect that: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 Securities shall, in their sole discretion, Purchased Notes on the Closing Date will be subject to the satisfaction or waiver accuracy, in all material respects, of the following conditions on or prior representations and warranties of the Trust herein, to the Closing Dateperformance, in all material respects, by the Trust of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchased Notes shall have been duly authorized, executed, authenticated 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 Class A-1A Notes, the Class A-1A VFN Notes, the Class A-1B Notes, the Class A-2A Notes, and the Class A-2B Notes shall each have been rated no less than “Aaa” by M▇▇▇▇’▇ and “AAA” by S&P, the Class B Notes shall have been rated no less than “Aa2” by M▇▇▇▇’▇ and “AA” by S&P, the Class C Notes shall have been rated no less than “A2” by M▇▇▇▇’▇ and “A” by S&P, and the Class D Notes shall have been rated no less than “Baa2” by M▇▇▇▇’▇ and “BBB” by S&P, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective rating agencies that the rating of the Purchased Notes have been placed under review.
(c) On the date of the Final Memorandum, KPMG LLC shall have furnished to the Initial Purchaser an “agreed upon procedures” letter, dated the date of delivery thereof, in form and substance satisfactory to the Initial Purchaser, with respect to certain financial and statistical information contained in the Final Memorandum.
(d) The Initial Purchaser shall have received an opinion, dated the Closing Date, of in-house counsel to the Trustee, in form and substance satisfactory to the Initial Purchasers Purchaser.
(e) The Initial Purchaser shall have received opinions, dated as legal opinions of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg L▇▇▇▇▇ & Co. (certain tax matters); W▇▇▇▇▇▇ LLP, counsel to the Company and Calder the Trust Depositor, (Cayman Island law); Advokatfinmaet Schjødt i) with respect to certain corporate, securities law and investment company matters, in form and substance satisfactory to the Initial Purchaser and (Norwegian law); ii) with respect to certain “true sale” and “non—consolidation” issues in form and substance satisfactory to the Initial Purchaser.
(f) The Initial Purchaser shall have received an opinion of V▇▇▇▇▇▇ LLP, counsel to the Company, with respect to certain corporate matters and “perfection issues” in form and substance satisfactory to the Initial Purchaser.
(g) The Initial Purchaser shall have received an opinion of Dechert LLP, special tax counsel to the Trust with respect to certain federal tax matters.
(h) The Initial Purchaser shall have received an opinion of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel to the Company and the Trust Depositor, with respect to certain “perfection issues” in form and substance satisfactory to the Initial Purchaser.
(i) The Initial Purchaser shall have received opinions of P▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for to the Issuer and/or Owner Trustee and the GuarantorsTrust, as the case may be, with respect to certain trust matters and with respect to certain “perfection issues,” in each case, case in form and substance satisfactory to the Initial Purchasers in their reasonable discretionPurchaser.
(bj) On the Closing Date, the The Initial Purchasers Purchaser shall have received an opinion, dated as opinion of the Closing Date and addressed to the Initial Purchasers, of N▇▇▇▇ P▇▇▇ ▇▇▇▇▇, in-house legal counsel for to the IssuersTrustee, with respect to certain “perfection issues” in form and substance satisfactory to the Initial Purchasers in their reasonable discretionPurchaser.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dk) The Initial Purchasers Purchaser shall have received from the Independent Accountants Trustee a comfort letter certificate signed by one or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties more duly authorized officers of the Issuers contained in this Agreement 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 any Authorized Person 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 shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersTrustee, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons in customary form.
(except in l) The Initial Purchaser shall have received from the case of any Issuer organized under the laws of the Netherlands, in which case, such Owner Trustee a certificate shall be signed by one Authorized Person who or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form.
(m) The Initial Purchaser and its counsel shall have received from the Trust and the Company 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 managing director Initial Purchaser and its counsel.
(n) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Initial Purchaser and 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 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 Initial Purchaser, this Agreement and 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 Purchased Notes. Notice of such Issuer), cancellation shall be given to the effect that:Trust in writing, or by telephone or facsimile 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 Notes and any Additional Closing Date for the Optional Notes. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be Notes are subject to the satisfaction absence from any certificates opinions, written statements or waiver letters furnished to the Initial Purchaser pursuant to this Section 7 of any misstatement or omission and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(ai) On The Initial Purchaser shall have received an opinion in form and substance reasonably satisfactory to the Initial Purchaser, dated the Closing Date, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Company covering the matters set forth on Exhibit B hereto.
(ii) The Initial Purchasers Purchaser shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, an opinion in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On Purchaser, dated the Closing Date, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., intellectual property counsel to the Company, covering the matters set forth on Exhibit C hereto.
(iii) The Initial Purchasers Purchaser shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, opinion of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 require.
(iv) The Initial Purchaser shall have received from Deloitte & Touche LLP, independent public accountants for the Company, on each of the date hereof and the Closing Date, in form and substance reasonably require. In rendering such opinion, Milbank, Tweed, satisfactory to the Initial Purchaser and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request LLP, counsel to pass upon such matters.
(d) The the Initial Purchasers shall have received from the Independent Accountants a comfort letter or Purchaser, letters dated the date hereof and the Closing Date, Date confirming that is an independent public accountant 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 form accountants’ “comfort letters” to underwriters with respect to the financial statements and substance satisfactory to counsel for certain financial and statistical information contained or incorporated by reference in the Initial PurchasersOffering Memorandum.
(ev) The Initial Purchaser shall have received from each of the officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially the form of Exhibit D hereto.
(vi) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial 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.
(viii) 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), subsequent 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 the Subsidiary, not disclosed in the Offering Memorandum that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities 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 the Subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchaser and their 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, in light of the circumstances under which they were made, not misleading.
(ix) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. 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, as of the Closing Date 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 in all material respects.
b. The issuance and sale of the Notes 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 issuance of the Securities or the Initial Purchaser’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, condition (financial or other), properties, or results of operations of the Company or the Subsidiary, not contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving the Company or the Subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that 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, in light of the circumstances under which they are made, not misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Memorandum, there exists no Default or Event of Default (as defined in the Indenture).
(x) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fxi) The sale All proceedings taken in connection with the issuance of the Securities hereunder Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchaser and counsel to the Initial Purchaser.
(gxii) Subsequent to The Notes shall have been approved for trading on PORTAL.
(xiii) Since the date of the Memorandumthis Agreement, the conduct of the business and operations of each of the Issuers there shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action“nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers shall Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectdetermined.
(hxiv) The Initial Purchasers shall have received a certificate of the Issuers, dated On or before the Closing Date, signed on behalf of each Issuer the Initial Purchaser shall have received the Registration Rights Agreement executed by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, Company and such certificate agreement shall be signed in full force and effect.
(xv) The Company shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested.
(xvi) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by one Authorized Person who the Company and duly authenticated by the Trustee. All such opinions, certificates, letters, schedules, documents 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 Purchaser and counsel to the Initial Purchaser. The Company shall be furnish to the managing director Initial Purchaser such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Curagen Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇B▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or Company and certain of the Subsidiary Guarantors, as the case may be, in each case, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, as set forth in their reasonable discretion.
(b) On Exhibit A-1 and Exhibit A-2 hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers. Additionally, on the Closing Date, the Initial Purchasers shall have received an opiniona reliance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of B▇▇▇ ▇▇▇ ▇▇▇▇▇▇ LLP, in-house legal counsel for the IssuersCompany and certain of the Subsidiary Guarantors, in form and substance satisfactory to allowing the Initial Purchasers to rely on such legal opinions as B▇▇▇▇ ▇▇▇▇ LLP may deliver to the Trustee in their reasonable discretionconnection with the offering of the Securities.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇▇ llp, counsel for 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 counsel may also state that, insofar as such opinionopinion involves factual matters, Milbankthey have relied, Tweedto the extent they deem proper, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have received and may rely upon such certificates and other documents and information as it may reasonably request been provided to pass upon such mattersthe Initial Purchasers.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited, unaudited and pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date the information stated in the comfort letter dated the date hereof and similarly address the audited, unaudited and pro forma financial information contained in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Subsidiary Guarantors’ 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 Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)Pricing Disclosure Package, 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.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate certificates of the IssuersCompany and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of each Issuer the Company or the applicable Subsidiary Guarantor by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company or the applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company or the applicable Subsidiary Guarantor 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or such Subsidiary Guarantor, 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).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Subsidiary Guarantors and such agreement shall be in full force and effect.
(i) The Securities shall be eligible for clearance and settlement through The Depository Trust Company. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company and the Subsidiary Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shallshall be subject, in their the Initial Purchasers' sole discretion, be subject to the satisfaction or waiver accuracy of the following conditions 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 or prior to and as of the Closing Date, to the accuracy of the statements of the Company's and the Guarantors' officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, legal opinions dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (Maltese law); StroeterLLP, counsel for the Company, together with the favorable opinion of ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, special Maryland counsel for the Issuer and/or Company, each dated as of the Guarantors, as the case may be, in each case, time of purchase and in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, to the effect set forth in their reasonable discretionExhibit A hereto.
(b) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of a legal opinion from ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇Chance US 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, Milbank, Tweed, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Chance US LLP shall have received and may rely as to factual matters upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from the Independent Accountants KPMG LLP a comfort letter or letters dated dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) 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 Issuers contained Company and the Guarantors in this Agreement shall be are 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 any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as each of the date made Company and on and as of the Closing Date; the Issuers shall have Guarantors has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except
(ii) subsequent to the respective dates as described of which information is given in the Memorandum (exclusive of any amendment or supplement thereto after the date hereofthereto), subsequent to neither the date Company nor any of the most recent financial statements in such Memorandum (whether its subsidiaries has sustained any material loss or not audited), there shall have been no event interference with their respective businesses 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court labor dispute or any legal or governmental actionproceeding, order and there has not been any materially adverse change (including, without limitation, a change in management or decreecontrol), andor 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 otherwise stated thereindescribed in or contemplated by the Memorandum (exclusive of any amendment or supplement thereto).
(e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, the properties of each of the Issuers there shall not have sustained occurred any loss downgrading, nor shall any notice or damage announcement have been given or made of (whether x) any intended or potential downgrading or (y) any watch, review or possible change that does not insured) as a result of any such occurrenceindicate an affirmation or improvement, except any such interference, loss or damage which would not, whether individually or in the aggregaterating accorded any of the Company's or any of its subsidiaries' 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 or received the Registration Rights Agreement executed by the Company and the Guarantors, and such agreement shall be reasonably likely to have a Material Adverse Effectin full force and effect at all times from and after the Closing Date.
(h) The On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received a certificate of such further certificates, documents or other information as they may have reasonably requested from the IssuersCompany. All opinions, dated certificates, letters and documents delivered pursuant to this Agreement will comply with the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except provisions hereof only if they are satisfactory in all material respects to the case of any Issuer organized under Initial Purchasers and counsel for the laws of Initial Purchasers. The Company shall furnish to the Netherlands, in which case, Initial Purchasers such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, and documents in such quantities as the effect that:Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Heritage Property Investment Trust Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, shall be subject to the satisfaction or waiver accuracy of the following conditions representations and warranties of the Company and the Guarantors in Section 3 hereof, in each case on or prior and as of the Applicable Time and on and as of the applicable Closing Date, as if made on and as of the Applicable Time and on and as of the applicable Closing Date, to the Closing Dateaccuracy of the statements of the Company’s and the Guarantors’ officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their respective covenants and agreements hereunder and to the following additional conditions:
(a) The Company shall furnish to the Initial Purchasers at the Closing Date and the Option Closing Date the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, corporate counsel for the Company, the Guarantors and the Subsidiaries, addressed to the Representative and dated the Closing Date and the Option Closing Date, substantially in the form of Exhibit A hereto.
(b) The Company shall furnish to the Initial Purchasers at the Closing Date and the Option Closing Date the opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Guarantors, addressed to the Representative and dated the Closing Date and the Option Closing Date, substantially in the form of Exhibit B hereto.
(c) On the date of this Agreement and at the Initial Closing DateDate and the Option Closing Date (if applicable), the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); LLP letters dated the respective dates of delivery thereof and Templars (Nigerian law), counsel for addressed to the Issuer and/or the Guarantors, as the case may be, in each caseRepresentative, in form and substance satisfactory to the Representative, containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Financial Statements and certain financial information of the Company, the Guarantors and the Subsidiaries included in the Disclosure Package and the Final Circular, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Initial Purchasers in their reasonable discretion.
Closing Date and the Option Closing Date (bif applicable) On shall use a “cut-off” date no more than three business days prior to such Initial Closing Date and the Option Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers case may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersbe.
(d) The Initial Purchasers shall have received at the Initial Closing Date and the Option Closing Date the favorable opinion of and a negative assurance letter from Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Independent Accountants a comfort letter or letters Initial Purchasers, addressed to the Representative and dated the date hereof Initial Closing Date and the Option Closing Date, in form and substance satisfactory to the Initial Purchasers. In addition, the Initial Purchasers shall have received at the Initial Closing Date and the Option Closing Date, (i) the favorable opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, as to certain federal income tax matters, substantially in the form of Exhibit C hereto, and (ii) the favorable opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, to the effect that the Company and the Guarantors are not, and the transactions contemplated by this Agreement will not cause the Company or the Guarantors to become, an “investment company” as such term is defined under the Investment Company Act, substantially in the form of Exhibit D hereto, each addressed to the Representative and dated the Initial Closing Date and the Option Closing Date.
(e) No amendment or supplement to the Disclosure Package and the Final Circular shall have been filed to which the Representative shall have objected in writing prior to the filing thereof.
(f) Between the time of execution of this Agreement and the Initial Closing Date or the Option Closing Date, there shall not have been any Material Adverse Change.
(g) At the Initial Closing Date, the Underlying Shares shall have been accepted for listing on the NYSE, subject to notice of issuance, and have been reserved for issuance by NRF.
(h) The Initial Purchasers shall have received, at the Initial Closing Date and the Option Closing Date, a certificate of two of NRF’s executive officers, to the effect that:
(i) the representations and warranties of the Issuers contained Company and the Guarantors in this Agreement shall be are true and correct on and as of the date hereof and on and as of the Closing Date correct, as if made on and as of the Initial Closing Date and the Option Closing Date; , as applicable, and the statements Company and the Guarantors have complied with all of any Authorized Person 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 shall have performed all covenants and agreements their respective obligations hereunder and satisfied all of the conditions on their part to be performed or satisfied hereunder at or prior to the at the Initial Closing Date and the Option Closing Date, as applicable; and, except as described in the Memorandum
(exclusive of any amendment or supplement thereto after the date hereof), ii) subsequent to the date respective dates as of which information is given in the Disclosure Package and the Final Circular, there has not been (A) any Material Adverse Change, (B) any transaction that is material to the Company or the Guarantors and their respective subsidiaries taken as a whole, (C) any obligation, direct or contingent, that is material to the Company and its subsidiaries, taken as a whole, incurred by the Company, the Guarantors or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the most recent financial statements in such Memorandum (whether Company, the Guarantors or not audited), 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent any Subsidiary that is material to the date of the MemorandumCompany, the conduct Guarantors and any of the business and operations of each of the Issuers shall not have been interfered with by striketheir respective subsidiaries, labor disputetaken as a whole, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insuredE) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss to the Properties which has been sustained or damage will have been sustained which would not, whether individually or in the aggregate, have or reasonably be reasonably likely expected to have a Material Adverse Effect.
(hi) The On or prior to the Initial Closing Date, the Initial Purchasers shall have received a certificate an agreement substantially in the form of Exhibit E hereto signed by the persons listed in Schedule III hereto.
(j) All corporate and partnership proceedings taken in connection with the issuance of the IssuersSecurities and the transactions contemplated by this Agreement, dated the Closing Date, signed on behalf Transaction Documents and all legal matters relating thereto shall be reasonably satisfactory to counsel to the Initial Purchasers and counsel to the Initial Purchasers shall have received copies of each Issuer by two Authorized Persons such papers and documents as they may reasonably request in connection therewith to enable them to pass upon such legal matters.
(except k) The Company and the Guarantors shall have furnished to the Initial Purchasers such other documents and certificates as to the accuracy and completeness of any statement in the case Disclosure Package and the Final Circular, the representations, warranties and statements of the Company and the Guarantors contained herein, and the performance by the Company and the Guarantors of their covenants contained herein, and the fulfillment of any Issuer organized under the laws conditions contained herein, as of the NetherlandsInitial Closing Date or the Option Time, in which case, such certificate shall be signed by one Authorized Person who shall be as the managing director of such Issuer), Initial Purchasers have requested prior to the effect that:date hereof.
Appears in 1 contract
Sources: Purchase Agreement (Northstar Realty Finance Corp.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Norton ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, in-house legal counsel for the IssuersCompany, substantially in the form attached hereto as Annex C.
(b) On the Closing Date, the Initial Purchasers shall have received a negative assurance letter, dated as of the Closing Date and substance satisfactory addressed to the Initial Purchasers Purchasers, of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, counsel for the Company, substantially in their reasonable discretion.the form attached hereto as Annex D.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(d) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(e) On the date hereof, the Initial Purchasers shall have received a letter dated the date hereof, in form and substance reasonably satisfactory to the Initial Purchasers, of NSAI.
(f) The representations and warranties of the Issuers Eclipse Entities contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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 Issuers Eclipse Entities shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 expected to have a Material Adverse Effect.
(fg) The issuance and sale of the Securities hereunder Notes by the Company or the issuance of the Guarantees shall not be enjoined (temporarily or permanently) on the Closing Date.
(gh) Subsequent to the date of the Memorandummost recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the Eclipse Entities shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hi) The Initial Purchasers shall have received a certificate from the Company, signed on behalf of the IssuersCompany by its Chief Executive Officer and Chief Financial Officer, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that, to such officers’ knowledge after due inquiry:
(i) the representations and warranties of the Eclipse Entities contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Eclipse Entities 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Eclipse Entities, that, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect; and
(iii) the issuance and sale of the Notes by the Company or the issuance of the Guarantees by the Guarantors has not been enjoined (temporarily or permanently).
(j) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by each of the Eclipse Entities and such agreement shall be in full force and effect.
(k) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Eclipse Entities as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
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 Notes and any Additional Closing Date for the Optional Notes. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be Notes are subject to the satisfaction absence from any certificates or waiver opinions furnished to the Initial Purchasers pursuant to this Section 7 of any misstatement or omissions and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date counsel in form and addressed substance satisfactory to the Initial Purchasers, of each of Linklaters (US Purchasers and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, dated the Closing Date, of ▇▇▇▇▇▇▇▇▇ Traurig, LLP, counsel to the Company, substantially in the form of Exhibit B hereto.
(ii) The Initial Purchasers shall have received opinions of counsel in form and Calder substance satisfactory to the Initial Purchasers and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, dated the Closing Date, of (Cayman Island law); Advokatfinmaet Schjødt i) Deacons, counsel to Synaptics Hong Kong Limited, (Norwegian law); ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Higham, counsel to Synaptics (UK) Limited and (iii) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, counsel to Synaptics Holding GmbH, substantially in the form of Exhibit C hereto.
(iii) The Initial Purchasers shall have received an opinion of counsel in form previously delivered to the Initial Purchasers and in substance satisfactory to the Initial Purchasers and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, dated the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, & ▇▇▇▇▇▇▇ & Ohno Advogados , P.C., intellectual property counsel to the Company.
(Brazilian law); and Templars (Nigerian law)iv) Upon the request of the Initial Purchasers, the Initial Purchasers shall have received an opinion of counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial Purchasers, dated the Closing Date, of Beresford & Co., intellectual property counsel to Synaptics (UK) Limited.
(v) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dvi) The Initial Purchasers shall have received from KPMG LLP, independent public accountants for the Independent Accountants Company, a comfort "comfort" letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial Purchasers.
(evii) The Initial Purchasers shall have received from Ernst & Young LLP, independent public accountants for the Company, a "comfort" letter dated the Closing Date, in the form of Exhibit D hereto.
(viii) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit E hereto.
(ix) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(x) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, or the other Offering Documents.
(xi) 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), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties or results of operations of the Company or any of the Subsidiaries, not contemplated by the Offering Memorandum that is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Offering Documents, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors, that makes any statement made in the Offering Memorandum untrue in any material respect or that, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, require the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(xii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. 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, as of the Closing Date 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.
b. The issuance and sale of the Notes 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 issuance of the Securities or the Initial Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any material change, or any development involving a prospective material change, in the general affairs, management, business, condition (financial or other), properties or results of operations of the Company or any of the Subsidiaries, not contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Offering Memorandum untrue in any material respect or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Documents, there exists no Default or Event of Default (as defined in the Indenture).
(xiii) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fxiv) The sale All proceedings taken in connection with the issuance of the Securities hereunder Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent reasonably satisfactory to the date of Initial Purchasers and counsel to the Memorandum, Initial Purchasers. The Initial Purchasers and counsel to the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xv) The Notes shall have been approved for trading on The PORTAL Market.
(xvi) Since the date of this Agreement, there shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the IssuersCompany, dated or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xvii) On or before the Closing Date, signed on behalf of each Issuer the Initial Purchasers shall have received the Registration Rights Agreement executed by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, Company and such certificate agreement shall be signed in full force and effect.
(xviii) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested.
(xix) At 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 and the Notes shall have been duly executed and delivered by one Authorized Person who the Company and duly authenticated by the Trustee. All such opinions, certificates, letters, schedules, documents 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 and counsel to the Initial Purchasers. The Company shall be furnish to the managing director Initial Purchasers such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Synaptics Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date opinion and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinionnegative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ LLP, in-house legal special counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers Purchasers, and substantially as set forth in their reasonable discretionAnnex B-1 and B-2, respectively, hereto. 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.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinionopinion and negative assurance letter, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct correct, in all material respects, on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects; the statements of any Authorized Person the Company’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct correct, in all material respects, on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers Representative shall have received a certificate of from the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons its (except in the case of i) Chief Executive Officer, President or any Issuer organized under the laws of the NetherlandsSenior Vice President or executive officer and (ii) Chief Financial Officer, in which caseController, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), Treasurer or principal financial or accounting officer to the effect that to such officers’ knowledge after due inquiry:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects, and the Company and the Guarantors 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or any Guarantor, that:, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Guarantors, and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Company, the Guarantors and the Trustee, and such agreement shall be in full force and effect at all times from and after the Closing Date.
(j) The Notes shall be eligible for clearance and settlement through The Depository Trust Company.
(k) On the Closing Date, the Initial Purchasers shall have received an amendment to the Company’s revolving credit and security agreement, as amended, to allow for the offering of the Notes and the incurrence of debt under the Indenture executed by the Company, the Guarantors and the lenders party thereto. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 Representative and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Representative such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Representative shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be Shares are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchaser pursuant to this Section 8 of any misstatement or omission and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(ai) On the Closing Date, the The Initial Purchasers Purchaser shall have received opinions, dated as of the Closing Date an opinion and addressed a negative assurance letter in form and substance reasonably satisfactory to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Purchaser from ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretionCompany.
(bii) On the Closing Date, the The Initial Purchasers Purchaser shall have received an opinion, dated as of the Closing Date opinion and addressed to the Initial Purchasers, a negative assurance letter of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(diii) The Initial Purchasers Purchaser shall have received from Ernst &Young LLP, independent registered public accounting firm for the Independent Accountants a comfort letter or letters dated Company, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser and counsel to the Initial Purchaser, letters dated the date hereof and the Closing Date confirming that is an independent public accountant 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 financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering Circular.
(eiv) The Initial Purchaser shall have received from each of the officers and directors listed on Schedule IV hereto an executed Lock-Up Agreement in substantially the form of Exhibit B hereto.
(v) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made in all material respects on and as of the Closing Date; the statements of any Authorized Person 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 Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Shares pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by the Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Memorandum Disclosure Package and the Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), subsequent 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 Disclosure Package and the Offering Circular that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Circular, 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 material statement made in the Offering Circular 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 Disclosure Package and the Offering Circular in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, unless such addition or change has been made by the Company in an amendment or supplement to the Disclosure Package and the Offering Circular.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct in all material respects as if made on and as of the Closing Date and, as of the Closing Date 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 in all material respects.
b. The issuance and sale of the Shares pursuant to this Agreement, the Disclosure Package and the Offering Circular 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 issuance of the Shares or the Initial Purchaser’ activities in connection therewith or in connection with any other transactions contemplated by the Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such Memorandum the Disclosure Package and the Offering Circular (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial condition , properties, prospects or results of operations of the Company or any subsidiary, not contemplated by the Disclosure Package and the Offering Circular, 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 material statement made in the Disclosure Package and the Offering Circular untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Circular in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, there exists no Default or Event of Default (as defined in the Certificate of Designations).
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fx) The sale All proceedings taken in connection with the issuance of the Securities hereunder Shares and the transactions contemplated by this Agreement and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchaser and counsel to the Initial Purchaser.
(gxi) Subsequent The Company shall have furnished or caused to be furnished to the date of Initial Purchaser such further certificates and documents as the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers Purchaser shall have received a certificate of reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the Issuers, dated provisions hereof only if they are reasonably satisfactory in all material respects to the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in Initial Purchaser and counsel to the case of any Issuer organized under Initial Purchaser. The Company shall furnish to the laws of the Netherlands, in which case, Initial Purchaser such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, Notes shall be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On The Final Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to the Closing Date, Initial Purchasers as promptly as practicable on or following the date of this Agreement or at such other date and time as to which the Initial Purchasers may agree; and no stop order suspending the sale of the Notes in any jurisdiction shall have been issued and no proceedings for the purpose shall have been commenced or shall be pending or threatened.
(b) None of the Initial Purchasers shall have received opinions, dated as of discovered and disclosed to Parent or any Subsidiary on or prior to the Closing Date that the Final Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Initial Purchasers, is material or omits to state any fact which, in the opinion of such counsel is material and addressed 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 the Final Memorandum and the transactions contemplated thereby, shall be satisfactory in all material respects to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ Parent and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory Subsidiaries shall have furnished to the Initial Purchasers in all documents and information that they or their reasonable discretioncounsel may reasonably request to enable them to pass upon such matters.
(bd) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Kirk▇▇▇▇ & ▇lli▇, ▇▇▇ ▇▇▇▇▇unsel for Parent and the Subsidiaries, in-house legal counsel for substantially in the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.annexed hereto as Exhibit A.
(ce) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ White & ▇▇▇▇▇▇Case LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ White & ▇▇▇▇▇▇ Case 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.
(df) The Initial Purchasers shall have received from the Independent Accountants a PricewaterhouseCoopers LLP (auditors of Orius Corp., U.S. Cable , Inc., CATV Subscriber Services, Inc., DAS-Co of Idaho, Inc., Copenhagen Utilities and Construction Inc., Texel Corporation, LISN, Inc. and Arion, Inc.), Will▇▇▇▇, ▇▇ung & Associates, LLC (auditors of Channel Communications, Inc.), Milh▇▇▇▇, ▇▇rt▇ & ▇eal, ▇▇P (auditors of Scha▇▇ Underground Cable, Inc.) and BDO Seid▇▇▇, ▇▇P (auditors of Network Cabling Services, Inc.), all independent public accountants, comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(eg) The representations and warranties of the Issuers Parent and each Subsidiary contained in this Agreement 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 Parent's or any Authorized Person Subsidiary'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 Issuers Parent and each Subsidiary shall have performed in all material respects all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)Final Memorandum, there shall have been no event or development, and no information shall have become known, development that, individually or in the aggregate, has had or would could reasonably be reasonably likely expected to have a Material Adverse Effect.
(fh) On the Closing Date, the Initial Purchaser shall have received copies of good standing certificates for Parent and each Subsidiary from their respective states of organization.
(i) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gj) Subsequent to the date of the Memorandummost 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 each of Parent and the Issuers Subsidiaries shall not have been interfered with by strike, labor dispute, slowdown, work stoppageby, fire, flood, hurricane, accident or other calamity (whether or not insured) or from any strike, labor dispute, slow down or work stoppage, or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each Parent or any of the Issuers 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 could not, whether individually or in the aggregate, have or reasonably be reasonably likely expected to have a Material Adverse Effect.
(hk) There shall not have occurred any invalidation of Rule 144A under the Act by any court or any withdrawal or proposed withdrawal of any rule or regulation under the Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the judgment of the Initial Purchasers would materially impair the ability of the Initial Purchasers to purchase, hold or effect resales of the Notes contemplated hereby.
(l) The Initial Purchasers shall have received a certificate of the Issuersfrom Parent and each Subsidiary, dated the Closing Date, signed on behalf by the two executive officers (or one executive officer and one vice president or assistant vice president) of each Issuer such entity and attested by two Authorized Persons (except in the case secretary or assistant secretary of any Issuer organized under the laws of the Netherlands, in which case, each such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), entity to the effect that:
(i) Such executive officers have carefully examined the Final Memorandum, and the Final Memorandum, as of its 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 in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and since the date of the Final Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Final Memorandum so that the Final Memorandum (as so amended or supplemented) would not include any untrue statement of a material fact and would not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ii) The representations and warranties of such entity contained in this Agreement are true and correct as of the Closing Date, and entity has performed in all material respects all covenants and agreements and satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(iii) Since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), except as described in the Final Memorandum, to their knowledge after due inquiry, no event or development has occurred, no information has become known nor does any condition exist that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.
(iv) No proceeding is pending or contemplated for the liquidation or dissolution of such entity or threatening its existence. Each such certificate shall also have attached copies of (i) all resolutions of the Board of Directors of such entity authorizing the transactions contemplated by this Agreement, including, without limitation, approving the offering of the Notes, the execution, performance and delivery of this Agreement, the Indenture and the Registration Rights Agreements, (ii) the certificate of incorporation and by-laws or analogous organizational documents of such entity, and (iii) the names, offices and specimen signatures of each officer of such entity that will execute any document delivered in connection with the transactions contemplated by this Agreement. For the purposes of the certificate contemplated by this Section 7(1), the following shall be deemed to be "executive officers" of a particular entity: its Chairman of the Board, Vice Chairman of the Board, President, Chief Executive Officer, Chief Operating Officer, Chief Financial Officer or Executive Vice President.
(m) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed by Parent and each Subsidiary and such agreement shall be in full force and effect at all times from and after the Closing Date.
(n) The Indenture shall have been duly executed and delivered by Parent, the Subsidiaries and the Trustee, and the Notes shall have been duly executed and delivered by Parent and the Subsidiaries and duly authenticated by the Trustee.
(o) The Notes shall have been approved by the NASD for trading in the PORTAL Market. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of Parent and the Subsidiaries as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
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 Notes and any Additional Closing Date for the Optional Notes. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be Notes are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchasers pursuant to this Section 7 of any misstatement or omissions and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as of the Closing Date an opinion in form and addressed substance reasonably satisfactory to the Initial Purchasers, dated the Closing Date, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg Kirkpatrick & Co. (certain tax matters); ▇▇Lockhart LLP, counsel to the Company, cove▇▇▇▇ ▇▇▇▇ ▇att▇▇▇ ▇▇ ▇re set forth in Exhibit B hereto.
(ii) The Initial Purchasers shall have received an opinion and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); a statement, each dated the Closing Date, of Simpson Thacher & Bartlett LLP, counsel to the Initial P▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇respect to t▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as sufficiency of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(diii) The Initial Purchasers shall have received from Deloitte & Touche LLP, independent auditors for the Independent Accountants Company, a comfort letter or letters "comfort" letter, dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(eiv) The Prior to the date hereof, the Initial Purchasers shall have received from each of the officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit C hereto.
(v) All of the representations and warranties of the Issuers contained Company set forth in this Agreement 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 any Authorized Person made pursuant to any certificate delivered Company shall have, in accordance all material respects, complied with the provisions hereof shall be true all agreements, and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have satisfied or performed all covenants conditions and agreements and satisfied all conditions obligations on their its part to be satisfied or performed or satisfied hereunder hereunder, at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements of the Company in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), results of operations, stockholders' equity or properties of the Company or any of the Subsidiaries, not disclosed in the Offering Memorandum that is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities 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 of the Subsidiaries, or any of their respective officers or directors, that makes any material statement made in the Offering Memorandum untrue or that, 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 necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. 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, as of the Closing Date, 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 in all material respects.
b. The issuance and sale of the Notes pursuant to this Agreement or 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 issuance of the Securities or the Initial Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, condition (financial or other), results of operations, stockholders' equity or properties of the Company or any of the Subsidiaries, not contemplated by the Offering Memorandum or (ii) any event or development relating to or involving the Company or any of the Subsidiaries or any of their respective officers or directors, that makes any statement made in the Offering Memorandum materially untrue or that 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, in light of the circumstances under which they are made, not misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Documents, there exists no Default or Event of Default (each such term as defined in the Indenture).
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fx) The sale All proceedings taken in connection with the issuance of the Securities hereunder Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchasers and counsel to the Initial Purchasers.
(gxi) Subsequent to The Notes shall have been approved for trading on The PORTAL Market.
(xii) Since the date of the Memorandumthis Agreement, the conduct of the business and operations of each of the Issuers there shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action"nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers shall Company or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectdetermined.
(hxiii) The On or before the Closing Date, the Initial Purchasers shall have received a certificate the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect.
(xiv) The Company shall have provided an irrevocable notice of termination to General Electric Capital Corporation of the IssuersLoan and Security Agreement, dated December 27, 1996, as amended, among Par Pharmaceutical, Inc., General Electric Capital Corporation and the other parties named therein shall have been terminated.
(xv) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested, all in form and substance reasonably satisfactory to them.
(xvi) At the Closing Date, signed on behalf of each Issuer the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by two Authorized Persons (except the Company and duly authenticated by the Trustee. All such opinions, certificates, letters, schedules, documents 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 case of any Issuer organized under Initial Purchasers and counsel to the laws of Initial Purchasers. The Company shall furnish to the Netherlands, in which case, Initial Purchasers such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that: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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, opinions in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial PurchasersDate, of Milbank(i) Weil, TweedGotshal & Mang▇▇ ▇▇▇, ▇counsel for the Issuers, substantially in the form of Exhibit B-1 hereto and (ii) Leib▇▇▇▇▇ & ▇▇▇▇▇▇ssociates, regulatory counsel for the Initial PurchasersIssuers, with respect to certain legal matters relating to this Agreement and such other related matters as substantially in the Initial Purchasers may reasonably requireform of Exhibit B-2 hereto. In rendering such opinionopinions, MilbankWeil, Tweed, Gotshal & Mang▇▇ ▇▇▇ and Lieb▇▇▇▇▇ & ▇▇▇▇▇▇ ssociates 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.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter each of Coopers & Lybr▇▇▇ ▇.▇.P., Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ and KPMG Peat Marwick, dated, respectively, on or letters dated about the date hereof and as of the Closing Date, customary comfort letters addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and in all material respects 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 any Authorized Person made pursuant to any certificate delivered in accordance with Company and 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 Guarantors shall have performed complied in all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), and subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)the Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or material adverse change in the aggregatebusiness, has condition (financial or would be reasonably likely to have other), results of operations or prospects of the Company and the Guarantors, taken as a Material Adverse Effectwhole, except as set forth in, or contemplated by, the Memorandum.
(fe) The issuance and sale of the Securities by the Company and the Guarantors hereunder shall not be enjoined (temporarily or permanently) on the Closing DateDate and no restraining order or other injunctive order shall have been issued or any action, suit or proceeding shall have been commenced with respect to this Agreement or any other transactions hereby, before any court or governmental authority (including, without limitation, the FCC).
(g) Subsequent to the date as of which information is given in the Memorandum, the conduct of the business and operations of each the Company or any of the Issuers shall its subsidiaries has not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each the Company or any of the Issuers shall its subsidiaries have 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, whether individually or in the aggregate, have or be reasonably likely to not have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its President and Chief Executive Officer and Senior Vice President and Chief Financial Officer of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Company, to the effect that:
(i) The representations and warranties of the Company and the Guarantors in this Agreement are true and correct in all material respects as if made on and as of the Closing Date (other than to the extent any such representation or warranty is expressly made to a certain date), and the Company and each Guarantor has performed in all material respects all covenants and agreements and satisfied, in all material respects, all conditions on their part to be performed or satisfied hereunder, to the extent a party thereto, at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statement in the Memorandum, no event or events have occurred, nor has any information become known that, individually or in the aggregate, would have a Material Adverse Effect;
(iii) The issuance and sale of the Securities by the Company and the Guarantors hereunder has not been enjoined (temporarily or permanently); and
(iv) indebtedness of the Company or the Guarantors that individually or in the aggregate would have a Material Adverse Effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Guarantors and such agreement shall be in full force and effect on the Closing Date.
(j) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers as they shall have heretofore reasonably requested from the Issuers. All such opinions, certificates, letters, schedules, documents 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments 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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsopinion letters, each in form and substance satisfactory to the Initial Purchasers and (other than with respect to clause (i) below) substantially as set forth in Exhibit A hereto, each dated as of the Closing Date and addressed to the Initial PurchasersPurchasers with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇i) ▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇ L.L.P., counsel for the Company and the Guarantors (including negative assurance paragraphs), (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A., special Florida and Georgia counsel for the Company and the Guarantors, (iii) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., special North Carolina counsel for the Company and the Guarantors, and (Maltese law); Stroeteriv) ▇▇▇▇, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)▇▇▇▇▇▇▇▇▇, PLLC, special Washington counsel for the Issuer and/or Company and the Guarantors. In rendering such opinions, such counsel shall have received and may rely upon such certificates and other documents and information as the case they may be, in each case, in form and substance satisfactory reasonably request to the Initial Purchasers in their reasonable discretionpass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date opinion and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opiniona negative assurance letter, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers, with respect to the audited and any unaudited financial information included or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update, as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information included or incorporated by reference in the Final Memorandum.
(d) [Reserved.]
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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 Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto 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).
(h) The Company and the Guarantors party thereto shall have executed and delivered the Base Indenture, and the Company and the Guarantors shall have executed and delivered the Fifth Supplemental Indenture, each in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof.
(i) No registration under the Act of the Securities is required in connection with the sale of the Securities 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 Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such 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 Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the representations of the Company contained in this Agreement and of the Initial Purchasers in Section 8 hereof regarding the absence of a general solicitation in connection with the sale of such 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. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company or the Guarantors. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company or any Guarantor, as applicable, shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (LGI Homes, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, Bonds shall be subject to the satisfaction or waiver accuracy on the date hereof and on the Closing Date of the following conditions representations and warranties made herein on or prior the part of the Company and of any certificates furnished by the Company on the Closing Date and to the Closing Datefollowing conditions:
(a) On At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); from ▇▇▇▇ ▇. ▇▇▇▇▇▇ , Esq., Senior Counsel-Corporate and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇Securities of Entergy Services, Inc., and ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP opinions, dated the Closing Date, substantially in the forms set forth in Exhibits A and B hereto, respectively (it being understood that ▇▇. ▇▇▇▇ (Maltese law); Stroeter, may rely on an opinion of ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel L.L.P. as to matters in his opinion relating to Texas law provided that the Initial Purchasers are addressees to, or are otherwise entitled to rely on, such opinion), (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Initial Purchasers, with respect and (ii) if the Offering Memorandum shall be supplemented after being furnished to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering for use in offering the Bonds, with changes therein to reflect such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matterssupplementation.
(dc) The At the Closing Date, the Initial Purchasers shall have received from Counsel for the Independent Initial Purchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the Closing Date.
(d) At the Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP, the Company's independent certified public accountants (the "Accountants"), a letter dated the Closing Date and addressed to the Initial Purchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and 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 applicable published rules and regulations thereunder; (iii) on the basis of performing the procedures specified by the AICPA for a comfort review of interim financial information as described in SAS No. 100, Interim Financial Information, on the latest unaudited financial statements, if any, incorporated by reference in the Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2002 to a specified date not more than five days prior to the date of such letter, and inquiries of officers 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 they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; and (C) at a specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or letters dated decrease in its net assets or shareholders' equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records 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 do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement.
(e) At the Closing Date, the Initial Purchasers shall have received a certificate signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the Company, to the effect that (i) the representations and warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Purchase Agreement to be performed or complied with by the Company at or prior to the Closing Date and (iii) since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in each case other than as referred to in, or contemplated by, the Offering Memorandum, as it may then be amended or supplemented.
(f) At the Closing Date, the Initial Purchasers shall have received duly executed counterparts of the Supplemental Indenture and the Registration Rights Agreement.
(g) Between the date hereof and the Closing Date, no default (or an event which, with the giving of notice or the passage of time or both, would constitute a default) under the Mortgage (as defined therein) shall have occurred.
(h) On or prior to the Closing Date, the Initial Purchasers shall have received from the Company evidence reasonably satisfactory to the Initial Purchasers that the Bonds have received ratings of Baa3 or better from ▇▇▇▇▇'▇ Investors Service, Inc. and BBB- or better from Standard & Poor's Ratings Services.
(i) Between the date hereof and the Closing Date, neither ▇▇▇▇▇'▇ Investors Service, Inc. nor Standard & Poor's Ratings Services shall have lowered its rating of any of the Company's outstanding first mortgage bonds in any respect.
(j) Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, which, in the reasonable opinion of BNP Paribas Securities Corp. and ▇▇▇▇▇▇ Brothers Inc., as representatives of the Initial Purchasers, materially impairs the investment quality of the Bonds.
(k) All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance satisfactory to counsel Counsel for the Initial Purchasers.
(el) The representations Company shall furnish the Initial Purchasers with additional conformed copies of such opinions, certificates, letters and warranties documents as may be reasonably requested. If any of the Issuers contained conditions specified in this Agreement 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 any Authorized Person 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 shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers Section 6 shall not have been interfered with fulfilled, this Purchase Agreement may be terminated by strikeBNP Paribas Securities Corp. and ▇▇▇▇▇▇ Brothers Inc., labor disputeon behalf of the Initial Purchasers, slowdown, work stoppage, fire, flood, hurricane, accident or upon notice thereof to the Company. Any such termination shall be without liability of any party to any other calamity (whether or not insured) or by any court or governmental action, order or decree, andparty, except as otherwise stated therein, the properties provided in paragraph (d) of each of the Issuers 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, whether individually or Section 5 and in the aggregate, have or be reasonably likely to have a Material Adverse EffectSection 9.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsopinion letters, each in form and substance satisfactory to the Initial Purchasers and (other than with respect to clause (i) below) substantially as set forth in Exhibit A hereto, each dated as of the Closing Date and addressed to the Initial PurchasersPurchasers with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇i) ▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇ L.L.P., counsel for the Company and the Guarantors, (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ + ▇▇▇▇▇▇▇▇▇ PC, special Colorado counsel for the Company and the Guarantors, (Maltese law); Stroeteriii) ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ (US) LLP, special Florida counsel for the Company and the Guarantors, (iv) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., special North Carolina counsel for the Company and the Guarantors, and (v) ▇▇▇▇, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)Cleveland, PLLC, special Washington counsel for the Issuer and/or Company and the Guarantors. In rendering such opinions, such counsel shall have received and may rely upon such certificates and other documents and information as the case they may be, in each case, in form and substance satisfactory reasonably request to the Initial Purchasers in their reasonable discretionpass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers, with respect to the audited and any unaudited financial information included or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update, as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information included or incorporated by reference in the Final Memorandum.
(d) [Reserved.]
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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 Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto 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).
(h) The Company and the Guarantors shall have executed and delivered the Base Indenture and the Third Supplemental Indenture, each in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof.
(i) No registration under the Act of the Securities is required in connection with the sale of the Securities 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 Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such 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 Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the representations of the Company contained in this Agreement and of the Initial Purchasers in Section 8 hereof regarding the absence of a general solicitation in connection with the sale of such 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. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company or the Guarantors. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company or any Guarantor, as applicable, shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (LGI Homes, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇i) P▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇G▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or Company and certain of the Subsidiary Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to counsel for the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal as set forth in Exhibit B-1 and Exhibit B-2 hereto and (ii) local counsel for certain of the IssuersSubsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, as set forth in their reasonable discretionExhibit C hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇▇ LLP, counsel for 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 counsel may also state that, insofar as such opinionopinion involves factual matters, Milbankthey have relied, Tweedto the extent they deem proper, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have received and may rely upon such certificates and other documents and information as it may reasonably request been provided to pass upon such mattersthe Initial Purchasers.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited or pro forma financial information in the Preliminary Memorandum. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall extend to the financial information, if any, contained in the Final Memorandum and not contained in the Preliminary Memorandum.
(ed) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Subsidiary Guarantors’ 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 Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)Offering 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.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate certificates of the IssuersCompany and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of each Issuer the Company or the applicable Subsidiary Guarantor by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company or the applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company or the applicable Subsidiary Guarantor 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or such Subsidiary Guarantor, 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).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Subsidiary Guarantors and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture, as amended or supplemented from time to time, executed by the Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect.
(j) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(k) The Securities shall be designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company and the Subsidiary Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Dateconditions:
(a) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as of opinions in form and substance satisfactory to the Closing Date Initial Purchasers and addressed to counsel for the Initial Purchasers, dated the Closing Date, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg i) Weil, Gotshal & Co. (certain tax matters); ▇▇▇▇▇▇ LLP, counsel for the Company, substantially in the form of Exhibit A-1 hereto and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ii) ▇▇▇▇▇▇▇▇▇ & Associates, regulatory counsel for the Company, substantially in the form of Exhibit A-2 hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Initial Purchasers, 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, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(dc) The Initial Purchasers shall have received from each of Coopers & ▇▇▇▇▇▇▇ L.L.P., independent public accountants for the Independent Accountants a comfort letter or Company, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants for Colfax, letters dated dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and in all material respects on and as of the Closing Date (other than to the extent any such representation or warranty is expressly made as if made on and as of the Closing Dateto a certain date); the statements of any Authorized Person 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 Company shall have performed performed, in all material respects, all covenants and agreements and satisfied satisfied, in all material respects, all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), and subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)the 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:material adverse
Appears in 1 contract
Sources: Purchase Agreement (Chancellor Broadcasting Co /De/)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(bi) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇ ▇▇▇ ▇& ▇▇▇▇, in-house legal special counsel for the IssuersCompany, in form and substance satisfactory to the Initial Purchasers Purchaser, and (ii) an opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇ P.C., special counsel for Globe Manufacturing, in their reasonable discretionform and substance satisfactory to the Initial Purchaser.
(b) On the Closing Date, the Initial Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, in form and substance satisfactory to the Initial Purchaser. In addition, the Initial Purchaser shall have received a letter or letters permitting it to rely on any opinions rendered by counsel to MergerCo, the Company and Globe Manufacturing in connection with the Transactions.
(c) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Milbank, Tweed, ▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇, counsel for the Initial PurchasersPurchaser, 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, Milbank, Tweed, ▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser.
(e) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)Final Memorandum, there shall have been no event or development, and no information shall have become known, development that, individually or in the aggregate, has or would reasonably be reasonably likely expected to have a Material Adverse Effect.
(f) The sale of the Securities Units hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandummost 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 each of the Issuers Company or the Subsidiaries shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers Company or any Subsidiary 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 notwhich, whether individually or in the aggregate, have or would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(h) The Initial Purchasers Purchaser shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, President or any Vice President and the Chief Financial Officer (in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuertheir respective capacities as such), to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct as of the date hereof 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 hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(iii) The sale of the Units hereunder shall not have been enjoined (temporarily or permanently); and
(iv) The Related Transactions have been consummated. As used herein, "Related Transactions" means (i) the Recapitalization of the Company (as defined in the Final Memorandum) pursuant to the Merger Agreement (as defined below), (ii) the Merger (as defined in the Final Memorandum), (iii) the CHS Loan, (iv) the repayment of the CHS Loan by the Company with the net proceeds of the offering of the Units, (v) the Asset Drop Down (as defined in the Final Memorandum), (vi) the consummation of the Senior Credit Facility and the initial borrowing by Globe Manufacturing of approximately $120 million thereunder, (vii) the repayment of all outstanding obligations under the Old Credit Facility (as defined in the Final Memorandum) and the release of all liens on property of the Company granted in connection therewith and (viii) the other transactions contemplated by the Merger Agreement. As used herein, the Merger Agreement means the Agreement and Plan of Merger dated June 23, 1998, by and between the Company and Globe Acquisition Company, a newly formed affiliate of Code ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ III, L.P., as amended through the date hereof.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsopinion letters, each in form and substance satisfactory to the Initial Purchasers and (other than with respect to clause (i) below) substantially as set forth in Exhibit A hereto, each dated as of the Closing Date and addressed to the Initial PurchasersPurchasers with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require, of each of Linklaters (US i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Company and UK law); De Brauw Blackstone Westbroek N.V.; the Guarantors, (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ii) ▇▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); & ▇▇▇▇▇▇▇, PLC, special Arizona counsel for the Company and the Guarantors, (iii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ + ▇▇▇▇▇▇▇▇▇ PC, special Colorado counsel for the Company and the Guarantors, (Maltese law); Stroeteriv) ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ (US) LLP, special Florida counsel and special Georgia counsel for the Company and the Guarantors, (v) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., special North Carolina counsel for the Company and the Guarantors, and (vi) ▇▇▇▇, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); Cleveland, PLLC, special Oregon counsel and Templars (Nigerian law), special Washington counsel for the Issuer and/or Company and the Guarantors. In rendering such opinions, such counsel shall have received and may rely upon such certificates and other documents and information as the case they may be, in each case, in form and substance satisfactory reasonably request to the Initial Purchasers in their reasonable discretionpass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers, with respect to the audited and any unaudited or pro forma financial information included or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update, as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information included or incorporated by reference in the Final Memorandum.
(d) The Initial Purchasers shall have received, on the Closing Date, a certificate dated the Closing Date in the form of Exhibit B hereto, from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial Officer and Treasurer of the Company, with respect to certain financial information contained in the Pricing Disclosure Package and the Final Memorandum.
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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 Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto 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).
(h) The Company and the Guarantors shall have executed and delivered the Base Indenture and the First Supplemental Indenture, each in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof.
(i) The Company and the Guarantors shall have executed and delivered the supplemental indenture to the indenture governing the Company’s 4.25% Convertible Notes due 2019, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received a copy of an executed original of such supplemental indenture.
(j) No registration under the Act of the Securities is required in connection with the sale of the Securities 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 Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such 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 Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the representations of the Company contained in this Agreement and of the Initial Purchasers in Section 8 hereof regarding the absence of a general solicitation in connection with the sale of such 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. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company or the Guarantors. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company or any Guarantor, as applicable, shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (LGI Homes, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On The Initial Purchaser shall have received an opinion in form and substance satisfactory to the Initial Purchaser, dated the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter& ▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass on such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian ▇▇▇▇▇ may state that their opinion is limited to matters of Illinois, New York, Delaware corporate and federal law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory . Such opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall be rendered to the Initial Purchasers in their reasonable discretionPurchaser at the request of the Company and shall so state therein.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial PurchasersPurchaser, 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, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser.
(ed) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent Other than as disclosed in the Memorandum, subsequent to the date of the Memorandummost recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers Purchaser shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Executive Vice President and the managing director of such Issuer)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 part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(h) The Company shall have received all necessary consents or waivers from the requisite lenders under the Credit Facility (as defined in the Offering Memorandum).
(i) The Company shall have received from each initial purchaser of the Notes from the Initial Purchaser an agreement to treat the receipt of the delayed draw special payment relating to such purchaser's agreement to schedule the closing date seven business days from the date of the Memorandum as ordinary income for tax purposes.
(j) On the Closing Date, the Initial 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. On or before the Closing Date, the Initial Purchaser and counsel for the Initial Purchaser shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 Purchaser and counsel for the Initial Purchaser. The Company shall furnish to the Initial Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchaser 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 Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date opinion and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinionnegative assurance statement, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in-house legal counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers substantially as set forth in their reasonable discretionExhibit A hereto. In rendering such opinion and negative assurance statement, such counsel may rely as to matters of fact, to the extent such counsel deems proper, on certificates or other written statements of official jurisdictions having custody of documents respecting the corporate existence or good standing of the entities referred to in such opinion and negative assurance statement.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinionopinion and negative assurance statement, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for 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 opinionopinion and negative assurance statement, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, following execution of this Agreement, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof hereof, in their capacity as officers of the Company, and not in their individual capacity, shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements included (or incorporated by reference) in such Memorandum (whether or not audited)Pricing Disclosure Package and the 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 expected to have a Material Adverse Effect.
(e) Subsequent to the date of the most recent financial statements included (or incorporated by reference) in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), except as described (or incorporated by reference) in the Pricing Disclosure Package and the Final Memorandum, neither the Company nor any of its Subsidiaries shall have sustained any loss or interference with 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 or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of from the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, President or any Executive or Senior Vice President and the Chief Financial Officer or Corporate Controller, in which case, such certificate shall be signed by one Authorized Person who shall be their capacity as officers of the managing director of such Issuer)Company and not in their individual capacity, to the effect that:
(i) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects), 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) at the Closing Date, since the date hereof or since the date of the most recent financial statements included (or incorporated by reference) in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto 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 expected to have a Material Adverse Effect.
(g) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Company and such agreement shall be in full force and effect.
(h) On the Closing Date, (i) the Initial Purchasers shall have received the Escrow Agreement executed by the Company, the Trustee and the Escrow Agent and such agreement shall be in full force and effect; (ii) the Company shall have deposited the Escrow Property equal to the Escrow Redemption Amount with the Escrow Agent in accordance with the Escrow Agreement; and (iii) the Trustee shall have a first-priority security interest in the Escrow Account and the Escrow Property pursuant to the Escrow Agreement. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company as they shall have heretofore reasonably requested from the Company for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date opinion and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinionnegative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ LLP, in-house legal special counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers Purchasers, and substantially as set forth in their reasonable discretionAnnex B-1 and B-2, respectively, hereto. In {N4389313.2} 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.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinionopinion and negative assurance letter, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date (which date shall not be more than three business days prior to the Closing Date), the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct correct, in all material respects, on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; provided, that (x) each such representation and warranty that contains a materiality qualification in the text of such representation and warranty and (y) the representations and warranties set forth in Section 2(hh), (ii) and (jj) shall, in each case, be true and correct in all respects; the statements of any Authorized Person the Company’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct correct, in all material respects, on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers Representative shall have received a certificate of from the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of its officers, including its Chief Executive {N4389313.2} Officer, President, any Issuer organized under the laws of the NetherlandsSenior Vice President, in which caseany executive officer, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, Controller, Treasurer or principal financial or accounting officer, to the effect that to such officers’ knowledge after reasonable inquiry:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date; provided, that (x) each such representation and warranty that contains a materiality qualification in the text of such representation or warranty and (y) the representations and warranties set forth in Section 2(hh), (ii) and (jj) shall, in each case, be true and correct in all respects; and the Company and the Guarantors 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or any Guarantor, that:, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Company, the Guarantors and the Trustee, and such agreement shall be in full force and effect at all times from and after the Closing Date.
(i) The Notes shall be eligible for clearance and settlement through The Depository Trust Company.
(j) The Representative shall have received evidence reasonably satisfactory to it that, at or prior to the time the Initial Purchasers purchase the Securities, an unconditional instruction (other than the condition of the completion of the issuance of the Notes) shall have been delivered to the trustee under the 2022 Notes Indenture to issue a notice of redemption to holders of such 2022 Notes for all outstanding 2022 Notes and moneys sufficient to satisfy such redemption payments shall have been deposited with the trustee for such Existing Notes, in accordance with the redemption procedures set forth in the 2022 Notes Indenture. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 Representative and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Representative such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Representative shall reasonably request. {N4389313.2}
Appears in 1 contract
Sources: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date for the Optional Shares. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be Purchased Shares are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchasers pursuant to this Section 7 of any misstatement or omissions and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On and Initial Purchasers’ Counsel, dated the Closing Date, of V▇▇▇▇▇ & E▇▇▇▇▇ L.L.P., counsel to the Company, addressed to the Initial Purchasers and substantially in the form of Exhibit B hereto.
(ii) The Initial Purchasers shall have received an opinion of counsel in form and substance satisfactory to the Initial Purchasers and Initial Purchasers’ Counsel, dated the Closing Date, of the S▇▇▇▇▇▇▇ Law Firm, L.L.C., counsel for the Company, addressed to the Initial Purchasers and substantially in the form of Exhibit C hereto.
(iii) The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the of Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Initial Purchasers’ Counsel, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(div) The Initial Purchasers shall have received from KPMG LLP, independent public accountants for the Independent Accountants Company, a comfort “comfort” letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers and Initial Purchasers’ Counsel.
(ev) The Initial Purchasers shall have received letters from each of Netherland S▇▇▇▇▇ and Coutret, each being independent petroleum engineers for the Company, dated, respectively, as of the date hereof and as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Initial Purchasers’ Counsel, with respect to the estimated quantities of the Company’s reserves, the future net revenues from those reserves and their present value as set forth in the Offering Memorandum (or, if the Offering Memorandum is not in existence, the most recent Preliminary Offering Memorandum) and such related matters as the Initial Purchasers shall reasonably request.
(vi) The Initial Purchasers shall have received from each of the Company’s officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit C attached hereto.
(vii) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(viii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, or the other Offering Documents.
(ix) 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), subsequent there shall not have occurred (i) any change, or any development involving a change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company or any of the Subsidiaries, not contemplated by the Offering Memorandum that is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Offering Documents, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and Initial Purchasers’ Counsel require the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(x) The Initial Purchasers shall have received certificates dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company (in their capacities as such) to the effect that:
a. 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, as of the Closing Date 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.
b. The issuance and sale of the Purchased Shares pursuant to this Agreement or 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 issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company or any of the Subsidiaries, not contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Offering Memorandum untrue or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(xi) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated hereby and thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fxii) The sale All proceedings taken in connection with the issuance of the Securities hereunder Purchased Shares and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchasers and Initial Purchasers’ Counsel. The Initial Purchasers and Initial Purchasers’ Counsel 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.
(gxiii) Subsequent to The Purchased Shares shall have been approved for trading on PORTAL.
(xiv) Since the date of the Memorandumthis Agreement, the conduct of the business and operations of each of the Issuers there shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action“nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers shall Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectdetermined.
(hxv) The On or before the Closing Date, the Initial Purchasers shall have received a certificate of the IssuersRegistration Rights Agreement executed by the Company, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, and such certificate agreement shall be signed by one Authorized Person who in full force and effect.
(xvi) The Company shall have furnished or caused to be furnished to the managing director Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents 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 and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that: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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇Dechert LLP, in-house legal counsel for the IssuersCompany, in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretionRepresentative. In rendering such opinion, Dechert 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) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Guarantors’ 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 Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which caseChief Executive Officer, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company, that, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Indenture and the Registration Rights Agreement executed by the Company and the Guarantors and such agreements shall be in full force and effect and in form and substance reasonably satisfactory to the Representative. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company, the Guarantors and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsopinion letters, each in form and substance satisfactory to the Initial Purchasers and (other than with respect to clause (i) below) substantially as set forth in Exhibit A hereto, each dated as of the Closing Date and addressed to the Initial PurchasersPurchasers with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇i) ▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇ L.L.P., counsel for the Company and the Guarantors, (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ + ▇▇▇▇▇▇▇▇▇ PC, special Colorado counsel for the Company and the Guarantors, (Maltese law); Stroeteriii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A., special Florida and Georgia counsel for the Company and the Guarantors, (iv) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., special North Carolina counsel for the Company and the Guarantors, and (v) ▇▇▇▇, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)Cleveland, PLLC, special Washington counsel for the Issuer and/or Company and the Guarantors. In rendering such opinions, such counsel shall have received and may rely upon such certificates and other documents and information as the case they may be, in each case, in form and substance satisfactory reasonably request to the Initial Purchasers in their reasonable discretionpass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers, with respect to the audited and any unaudited financial information included or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update, as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information included or incorporated by reference in the Final Memorandum.
(d) [Reserved.]
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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 Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto 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).
(h) The Company and the Guarantors party thereto shall have executed and delivered the Base Indenture, and the Company and the Guarantors shall have executed and delivered the Fourth Supplemental Indenture, each in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof.
(i) No registration under the Act of the Securities is required in connection with the sale of the Securities 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 Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such 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 Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the representations of the Company contained in this Agreement and of the Initial Purchasers in Section 8 hereof regarding the absence of a general solicitation in connection with the sale of such 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. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company or the Guarantors. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company or any Guarantor, as applicable, shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (LGI Homes, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, Bonds shall be subject to the satisfaction or waiver accuracy on the date hereof and on the Closing Date of the representations and warranties made herein on the part of the Funding Corporation and the Company and of any certificates furnished by the Funding Corporation or the Company on the Closing Date and to the following conditions on or prior to conditions: At the Closing Date:
, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (athe “Holding Company Act”) On authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement. At the Closing Date, the Initial Purchasers shall have received from ▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇, Professional Association; ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP; and Friday, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP as counsel to the Company; and ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP, as counsel to the Funding Corporation, opinions, dated the Closing Date, substantially in the forms set forth in Exhibits A, B, C and D hereto, respectively, (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Initial Purchasers, and (ii) if the Offering Memorandum shall be supplemented after being furnished to the Initial Purchasers for use in offering the Bonds, with changes therein to reflect such supplementation. At the Closing Date, the Initial Purchasers shall have received from Counsel for the Initial Purchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit E hereto, with such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the Closing Date. On or prior to the date this Purchase Agreement became effective, the Initial Purchasers shall have received from Deloitte & Touche LLP, the Company’s independent certified public accountants (the “Accountants”), a letter dated the Closing Date and addressed to the Initial Purchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the “AICPA”) Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and 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 applicable published rules and regulations thereunder; (iii) on the basis of performing the procedures specified by the AICPA for a review of interim financial information as described in SAS No. 100, Interim Financial Information, on the latest unaudited financial statements, if any, incorporated by reference in the Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2003 to a specified date not more than five days prior to the date of such letter, and inquiries of officers 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 they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (C) at the date of the latest available balance sheet read by the Accountants, and at a subsequent specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholders’ equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (D) for the period from the closing date of the most recent income statement incorporated by reference in the Offering Memorandum to the closing date of the latest available income statement read by the Accountants, there were any decreases, as compared to the corresponding period in the preceding year, in operating revenues, operating income or net income, except in all instances for decreases which the Offering Memorandum discloses have occurred or may occur or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company set forth in the Offering Memorandum, and set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records 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 do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement. At the Closing Date, the Initial Purchasers shall have received (i) a certificate signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of each of Linklaters the Funding Corporation and the Company, respectively, to the effect that (US A) the representations and UK lawwarranties of the Funding Corporation and the Company, as the case may be, contained herein are true and correct, and (B) each of the Funding Corporation and the Company has performed and complied with all agreements and conditions in this Purchase Agreement on its part to be performed or complied with at or prior to the Closing Date, (ii) a certificate, dated the Closing Date and signed by the President or a Vice President of the Company that since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in each case other than as referred to in, or contemplated by, such Offering Memorandum, as it may then be amended or supplemented, and (iii) a certificate, dated the Closing Date and signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of Entergy Corporation (“Entergy”); De Brauw Blackstone Westbroek N.V.; , to the effect that since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of Entergy and its subsidiaries considered as a whole. At the Closing Date, the Initial Purchasers shall have received duly executed counterparts of the Trust Indenture. At the Closing Date, the Initial Purchasers shall have received from the Accountants a letter, dated the Closing Date, confirming, as of a date not more than five days prior to the Closing Date, the statements contained in the letter delivered pursuant to Section 6(d) hereof. Between the date hereof and the Closing Date, no default (Netherlands law); De Brauw Blackstone Westbroek P.C. or an event which, with the giving of notice or the passage of time or both, would constitute a default) under the Lease, the Lease Indenture (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); as defined in the Offering Memorandum) or the Trust Indenture shall have occurred. On or prior to the Closing Date, the Initial Purchasers shall have received from the Company evidence reasonably satisfactory to the Initial Purchasers that the Bonds have received ratings of _______ or better from ▇▇▇▇▇’▇ Investors Service, Inc. and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ________or better from Standard & Poor’s Ratings Services. Between the date hereof and the Closing Date, neither ▇▇▇▇▇’▇ Investors Service, Inc. nor Standard & Poor’s Ratings Services shall have lowered its rating of any of the Bonds or the Company’s outstanding first mortgage bonds in any respect, and no rating agency shall have publicly announced that it has placed under surveillance or review, with possible negative implications, its rating (or expected rating) of the Bonds or any security of the Company. Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, or the Entergy System as a whole as it affects the Company, which, in the reasonable opinion of [▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Citigroup Global Markets Inc., as representatives of the Initial Purchasers,] [the Initial Purchasers] materially impairs the investment quality of the Bonds. The Bonds shall, upon delivery to the Initial Purchasers in accordance with this Purchase Agreement, be secured by notes in accordance with the Trust Indenture; the conditions precedent to a refunding, as set forth in the Participation Agreement (including, without limitation, Sections 2(d) and 11(c) thereof) and the Refunding Agreements (including, without limitation, Section 5 thereof), shall have been met prior to the issuance and delivery of such notes, with none of such conditions precedent having been waived by the Funding Corporation, the Company or the Trustee without the consent of the Initial Purchasers. The opinions of counsel required to be delivered by the first two sentences of Section 11(c)(6) of the Participation Agreement as a condition precedent to a refunding shall also be addressed and delivered to the Initial Purchasers, except for the opinions of Special Counsel, Special NRC Counsel and Special Mississippi Counsel to the Owner Participants and the opinion of the Lessee’s Special Louisiana Counsel, all as described and/or defined in the Participation Agreement, it being understood that such opinions of counsel may be confirmations by counsel of opinions previously delivered by such counsel in connection with the transactions described in or contemplated by the Participation Agreement, provided that such confirmations of opinions shall be dated the Closing Date, shall confirm the previously delivered opinions as of the Closing Date, and shall either be addressed to the Initial Purchasers or shall state that the Initial Purchasers may rely upon the previously delivered opinions, as so confirmed, as if addressed to them. The opinions of counsel required to be delivered to the Trustee pursuant to Section 2.04(e) of the Trust Indenture shall also be addressed and delivered to the Initial Purchasers. All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance to Counsel for the Initial Purchasers. The Funding Corporation and the Company shall furnish the Initial Purchasers with additional conformed copies of such opinions, certificates, letters and documents as may be reasonably requested. If any of the conditions specified in this Section 6 shall not have been fulfilled, this Purchase Agreement may be terminated by [▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); Co. Incorporated and Templars (Nigerian law)Citigroup Global Markets Inc., counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as on behalf of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to ,] [the Initial Purchasers, dated as of the Closing Date and addressed ] upon notice thereof to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and Company. Any such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers contained in this Agreement termination 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 without liability of any Authorized Person made pursuant party 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 shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, andparty, except as otherwise stated therein, the properties provided in paragraph (d) of each of the Issuers 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, whether individually or Section 5 and in the aggregate, have or be reasonably likely to have a Material Adverse EffectSection 9.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ Mayer, Brown & Platt, counsel for the Company, in form and ▇▇▇▇▇, in-house legal anc▇ ▇▇▇isfa▇▇▇▇▇ to counsel for the IssuersInitial Purchasers, in form and substance satisfactory with respect to the Initial Purchasers matters provided for in their reasonable discretionExhibit B hereto.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇Reindel, counsel for the Initial Purchasers, with respect to certain wi▇▇ ▇▇▇▇▇▇▇ ▇o c▇▇▇▇▇▇ legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇ Reindel shall have received and may rely upon such certificates and ▇▇▇▇ ▇▇▇▇▇▇▇cat▇▇ ▇▇▇ other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers contained in this Agreement 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 any Authorized Person 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 shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)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.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)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 Issuers have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto 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).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(i) Concurrently with or prior to the issuance and sale of the Securities by the Issuers, the Company and the Guarantors shall have entered into the Senior Credit Agreement.
(j) The Securities shall have been approved by the NASD for trading in the Portal Market and shall be eligible for clearance and settlement through DTC. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Coinmach Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations ------------------------------------------------- of the several Initial Purchasers to purchase and pay for the Securities shallNotes shall be subject, in their the Initial Purchasers' sole discretion, be subject to the satisfaction or waiver accuracy of the following conditions on or prior to representations and warranties of the Company and the Subsidiary Guarantors in Section 2 hereof, in each case as of the date hereof (the "Execution Date") and -------------- as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company's and any Subsidiary Guarantor's officers made pursuant to the provisions hereof, to the performance by the Company and the Subsidiary Guarantors of their respective covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., counsel for the Company, to the effect set forth in Exhibit C hereto and otherwise in form and substance satisfactory to the Initial Purchasers.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of each of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, each as counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Milbanksuch counsel may, Tweed, ▇to the extent that ▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may L.L.P. consents, rely as to certain matters of law upon such certificates and other documents and information as it may reasonably request the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. referred to pass upon such mattersin paragraph (a) above.
(dc) The Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated dated, respectively, the date hereof Execution Date and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, to the effect that:
(i) they are independent accountants with respect to the Company and its consolidated subsidiaries within the meaning of the Securities Act and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated financial statements and schedules examined by them and included in the Final Memorandum comply in form in all material respects with the applicable accounting requirements of the Securities Act and the related published rules and regulations;
(iii) on the basis of carrying 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), a reading of the minute books of the shareholders, the board of directors and any committees thereof of the Company, and inquiries of certain officials of the Company 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 five business days prior to the date of such letter, there were any changes in the capital stock or long-term debt of the Company consolidated or any decreases in net current assets or stockholders' equity of the Company consolidated, in each case compared with amounts shown on the December 31, 1998 unaudited consolidated balance sheet included in the Final Memorandum, or, for the period from January 1, 1999 to such specified date, there were any decreases, as compared with a period of substantially the same length of time ended on December 31, 1998, in total revenues, net income before income taxes or total or per share amounts of net income of the Company consolidated, except in all instances for changes, decreases or increases set forth in such letter;
(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 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 questions of legal interpretation; and
(v) on the basis of a reading of the unaudited pro forma consolidated financial statements included in the Final Memorandum, carrying out certain specified procedures that would not necessarily reveal matters of significance with respect to the comments set forth in this paragraph (v), inquiries of certain officials of the Company who have responsibility for financial and accounting matters and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the unaudited pro forma consolidated financial statements, nothing came to their attention that caused them to believe that the unaudited pro forma consolidated financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. In the event that the letters referred to above set forth any such changes, decreases or increases, it shall be a further condition to the obligations of the Initial Purchasers that (A) such letters shall be accompanied by a written explanation from the Company as to the significance thereof, unless the Initial Purchasers deem such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Initial Purchasers, make it impractical or inadvisable to proceed with the purchase and delivery of the Notes as contemplated by this Agreement and the Final Memorandum, as amended as of the date hereof. References to the Final Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(e1) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that:
(i) the representations and warranties of the Issuers contained Company in this Agreement shall be are 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 any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and Final Memorandum, as of the date made and on and amended or supplemented as of the Closing Date, does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Issuers shall have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum
(exclusive of any amendment or supplement thereto after the date hereof), ii) subsequent to the date as of the most recent financial statements in such Memorandum (whether or not audited), there shall have been no event or development, and no which information shall have become known, that, individually or is given in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Final Memorandum, neither the conduct Company nor any of the business and operations of each of the Issuers shall not have been interfered its subsidiaries has sustained any material loss or interference with by strike, labor dispute, slowdown, work stoppage, their respective businesses or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court labor dispute or any legal or governmental actionproceeding, order and there has not been any material adverse change, or decreeany development involving a prospective material adverse change, andin the condition (financial or otherwise), management, business prospects, net worth or results of operations of the Company or any of its subsidiaries, except in each case as otherwise stated therein, described in or contemplated by the properties of each of the Issuers shall not have sustained any loss or damage Final Memorandum (whether or not insured) as a result exclusive of any such occurrence, except any such interference, loss amendment or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectsupplement thereto).
(h2) The Initial Purchasers shall have received a certificate of the Issuerscertificate, dated the Closing Date, signed on behalf of the chairman of the board and the principal financial or accounting officer of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Subsidiary Guarantor, to the effect that:that the representations and warranties of such Subsidiary Guarantor in this Agreement are true and correct as if made on and as of the Closing Date and such Subsidiary Guarantor 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.
(e) Subsequent to Execution Date, there shall not have been any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(f) On or before the Closing Date, the Initial Purchasers, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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 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 and counsel for the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Note Purchase Agreement (Global Imaging Systems Inc)
Conditions of the Initial Purchasers’ Obligations. The --------------------------------------------------- obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers The Memorandum shall have received opinions, dated as of the Closing Date be in form and addressed substance reasonably satisfactory to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion. The Company shall have complied with Section 5(a) hereof.
(b) On the Closing Date, the Initial Purchasers shall have received an the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Company, in the form attached hereto as Exhibit A, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇, in-house legal counsel for Esq., Senior Vice President, Legal and Strategic Affairs, of the IssuersCompany, in the form attached hereto as Exhibit B, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers.
(cd) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(de) The Initial Purchasers shall have received from the Independent Accountants PricewaterhouseCoopers LLP a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ef) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Issuers Company shall have performed in all material respects all covenants and agreements and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)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.
(fg) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gh) Subsequent to the date of the Memorandummost recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hi) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct in all material respects 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 in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(j) 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.
(k) On the Closing Date, the Initial Purchasers shall have received the Escrow Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(l) On the Closing Date, the Company shall have irrevocably called for redemption of all of its 8 7/8% Senior Subordinated Notes due 2008 and shall provide evidence thereof reasonably satisfactory to the Initial Purchasers. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have theretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments 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 Securities shall, in their sole discretion, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Companies and the Guarantor of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
(ai) On the Closing Date, the The Initial Purchasers Purchaser shall have received opinionsan opinion from of Dow, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); & ▇▇▇▇▇▇▇▇▇, PLLC, special counsel to the Companies, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel to the Guarantor and ▇▇▇▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)▇▇▇▇▇, regulatory counsel for to the Issuer and/or the Guarantors, as the case may be, in each caseCompanies, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date Purchaser and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On Purchaser, dated the Closing Date, substantially in the Initial Purchasers shall have received the opinionform of, in form respectively, Exhibit B-1, Exhibit B-2 and substance satisfactory to the Initial PurchasersExhibit B-3 hereto. In rendering such opinions, dated as ----------- ----------- ----------- each of the Closing Date and addressed to the Initial Purchasers, of Milbank, TweedDow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for to the Initial PurchasersPurchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchaser, 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, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers Purchaser shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants for the Independent Accountants a comfort letter or Companies "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchaser.
(eiv) The representations and warranties of the Issuers Companies and the Guarantor contained in this Agreement 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 any Authorized Person made pursuant to any certificate delivered in accordance with Companies and 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 Guarantor shall have performed in all covenants and material respects complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Companies or the Guarantor or any material increase in the consolidated short-term or long-term debt of the Companies or the Guarantor from that set forth or contemplated in the Memorandum and the Companies and the Guarantor shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Companies and the Guarantor, taken as a whole, other than those reflected in the Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contem plated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described order, decree or other administrative proceeding instituted or threatened against any of the Companies, the Guarantor or the Initial 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 Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, not contemplated by the Memorandum, which would result in a Material Adverse Effect, or (ii) any event or development relating to or involving any of the Companies or the Guarantor or any of the officers or directors of the Companies or the Guarantor that makes any material statement made in the Memorandum untrue or that, in the opinion of the Companies, the Guarantor and their respective counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chairman and the chief financial officer of each Company and the Guarantor, to the effect that:
a. All of the representations and warranties of the Companies and the Guarantor set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Companies and the Guarantor have in all material respects complied with all agreements and covenants in this Agreement and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Memorandum and the consummation of the transactions contemplated by the Transaction 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 threatened against any of the Companies and the Guarantor relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, not contemplated by the Memorandum, which would result in a Material Adverse Effect, or (ii) any event or development relating to or involving any of the Companies or the Guarantor or any of the respective officers or directors of the Companies or the Guarantor that makes any material statement made in the Memorandum untrue or that requires the making of any addition to or change in the Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(a) There has not been any change in the capital stock, partnership interests or membership interests of the Companies or the Guarantor nor any material increase in the consolidated short-term or long-term debt of the Companies or the Guarantor from that set forth or contemplated in the Memorandum and (b) the Companies and the Guarantor have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Companies and the Guarantor, taken as a whole, other than those reflected in the Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fx) The sale All proceedings taken in connection with the issuance of the Securities hereunder and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably 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.
(xi) 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 (A) it is downgrading its rating assigned to any debt securities of the Companies, or (B) it is reviewing its rating assigned to any debt securities of the Companies with a view to possible downgrading, or with negative implications, or direction not determined.
(xii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Companies and the Guarantor and such agreement shall be enjoined (temporarily or permanently) on in full force and effect at all times from and after the Closing Date.
(gxiii) Subsequent The Companies and the Guarantor shall have furnished or caused to be furnished to the date of Initial Purchaser such further certificates and documents as the Memorandum, the conduct of the business and operations of each of the Issuers Initial Purchaser shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectrequested.
(hxiv) The System Acquisition shall have been consummated and the assets constituting the System (other than the Retained Assets, as defined in the Contribution Agreement) shall have been contributed to the Guarantor and the Guarantor shall have received at least $10.0 million cash in equity from Insight Holdings of Ohio, LLC.
(xv) The Certificate of Formation for the Guarantor shall have been filed and become effective with the Secretary of State of the State of Delaware and the Operating Agreement shall have been adopted.
(xvi) The Preferred Interests and a 25% common membership interest in the Guarantor shall have been issued to Coaxial.
(xvii) The Initial Purchasers Purchaser shall have received a certificate of an executed Pledge Agreement. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the Issuers, dated provisions hereof only if they are reasonably satisfactory in all material respects to the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in Initial Purchaser and counsel to the case of any Issuer organized under Initial Purchaser. The Companies and the laws of Guarantor shall furnish to the Netherlands, in which case, Initial Purchaser such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Restructuring Agreement (Insight Communications of Central Ohio LLC)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇Dechert LLP, in-house legal counsel for the IssuersCompany, in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretionRepresentative. In rendering such opinion, Dechert 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) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Guarantors’ 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 Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which caseChief Executive Officer, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company and the Guarantors, that, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Indenture and the Registration Rights Agreement executed by the Company and the Guarantors and such agreements shall be in full force and effect and in form and substance reasonably satisfactory to the Representative.
(i) On or before the Closing Date, the Company shall have delivered to the trustee under the Existing Notes Indenture an irrevocable notice of redemption in accordance with the provisions of the Existing Notes Indenture (a copy of which shall be delivered to the Initial Purchasers) in an amount equal to the difference between (i) $850,000,000 and (ii) the amount of the Existing Notes repurchased pursuant to the Tender Offer. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company, the Guarantors and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇i) ▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)Day, counsel for the Issuer and/or Company and the Guarantors, as Guarantor in substantially the case may be, in each caseform of Exhibit A attached hereto and (ii) the General Counsel or Associate General Counsel of the Company and the Guarantor, in form and substance satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers contained in this Agreement 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 any Authorized Person the Issuers' 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 Issuers Company and the Guarantor shall have performed in all material respects all covenants and agreements and satisfied all conditions in all material respects on their 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 Memorandum (whether or not audited)Final Memorandum, there shall have been no event or development, and no information shall have become knownknown with respect to the business condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, thattaken as a whole, individually or in the aggregate, that has or would could reasonably be reasonably likely expected to have result in a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent historical financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slowdown or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether interference has or not insured) as a could reasonably be expected to result of any such occurrencein, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate from each of the Issuers, dated the Closing Date, signed on behalf of each Issuer the Company and the Guarantor by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which casePresident, such certificate shall be signed by one Authorized Person who shall be General Counsel or any Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuers contained in this Agreement are true and correct in all material respects on and as of the date hereof and on and as of the Closing Date, and the Issuers have performed in all material respects all covenants and agreements and satisfied all conditions in all material respects on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent historical financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that has or could reasonably be expected to result in a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by each of the Issuers and such agreement shall be in full force and effect.
(i) The Company shall have delivered to the Initial Purchasers a true, correct and complete copy of the Credit Agreement; the Company, the Guarantor, the other Subsidiaries party thereto and the other parties thereto shall have executed and delivered the Credit Agreement, and the Credit Agreement shall be in full force and effect, subject only to the Closing hereunder and the closing of the CVC Sale.
(j) The Company shall have delivered to the Initial Purchasers a true, correct and complete copy of the documents governing the CVC Sale; such documents shall be in full force and effect and the CVC sale shall have occurred but for the release of the CVC Notes in the systems of The Depository Trust Company, which shall occur concurrently with the Closing hereunder (for the avoidance of doubt, the concurrent issuance of the CVC Notes is a condition to the Initial Purchasers' obligations hereunder).
(k) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(l) The Securities shall be designated Portal-eligible securities in accordance with the rules and regulations of the NASD. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such reasonable 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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsthe opinion and negative assurance letter, each dated as of the Closing Date Date, and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇& ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or Company and the Guarantors, in the forms attached hereto as Annex B. In rendering such opinions, the case foregoing shall have received and may be, in each case, in form rely upon such certificates and substance satisfactory other documents and information as it may reasonably request to the Initial Purchasers in their reasonable discretionpass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinionthe opinion and negative assurance letter, each in form and substance satisfactory to the Representative, dated as of the Closing Date Date, and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof and on the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters Ernst & Young LLP, independent public accountants with respect to WSMM, letters, dated the date hereof respective dates of delivery thereof and addressed to the Closing DateInitial Purchasers, in form and substance reasonably satisfactory to counsel for the Initial PurchasersRepresentative, 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 Pricing Disclosure Package and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and Guarantors’ respective 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 Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company, the conduct Guarantors nor any of the their respective subsidiaries shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany and the Guarantors, dated the Closing Date, signed on behalf by the Chief Executive Officer or President or any Senior Vice President and the Chief Financial Officer of the Company and each Guarantor, confirming the matters set forth in clauses (d), (e) and (f) of this Section 6.
(h) The Initial Purchasers shall have received reasonably satisfactory evidence of the good standing (or its equivalent in jurisdictions where such concept does not exist) of the Company and the Guarantors as of the Closing Date 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.
(i) The Notes shall be eligible for clearance and settlement through DTC.
(j) On the Closing Date, the Indenture, the Security Documents and ICA ▇▇▇▇▇▇▇▇ shall have been duly executed and delivered by a duly authorized officer of each Issuer of the Company, the Guarantors, the Trustee and the Collateral Agent, and the Notes shall have been duly executed and delivered by two Authorized Persons a duly authorized officer of the Company and duly authenticated by the Trustee.
(k) No securities of the Company shall have been downgraded by any nationally recognized statistical rating organization and no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its ratings of any securities of the Company or any Guarantor (other than an announcement with positive implications of possible upgrading).
(l) The Initial Purchasers shall have received the results of a recent lien search in each of the jurisdictions where assets of the Company and the Guarantors are located and any jurisdictions in which valid filings with respect to such assets of the Company and the Guarantors may be in effect, and such search shall reveal no liens on any of the assets of the Company, the Guarantors or any of their respective subsidiaries except (i) as described in the case Pricing Disclosure Package and the Final Memorandum (exclusive of any Issuer organized under amendment or supplement thereto after the laws date hereof) and (ii) those pursuant to the ABL Facility.
(m) Except as otherwise provided for in the Security Documents, the Indenture or the other documents entered into pursuant to the transactions described herein, the Representative and the Collateral Agent shall have received each of the NetherlandsSecurity Documents, in which caseform and substance reasonably satisfactory to the Initial Purchasers, and all other certificates, agreements or instruments necessary to perfect the Collateral Agent’s security interest in all of the Collateral. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such certificate further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company, the Guarantors and each of their respective subsidiaries as they shall be signed by one Authorized Person who have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall be furnish to the managing director Initial Purchasers such conformed copies of such Issuer)documents, to opinions, certificates, letters, schedules and instruments in such quantities as the effect that:Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (WillScot Mobile Mini Holdings Corp.)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Securities. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities shallare subject to the absence from any certificates, opinions, written statements or letters furnished to the Initial Purchaser pursuant to this Section 7 of any misstatement or omission and to the following additional conditions unless waived in writing by the Initial Purchaser:
(A) The Initial Purchaser shall have received an opinion, in their form and substance satisfactory to the Initial Purchaser, in its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On dated the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg O’Melveny & Co. (certain tax matters); ▇▇▇▇▇▇ , LLP, counsel to the Company.
(B) The Initial Purchaser shall have received an opinion, in form and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of ▇▇▇▇▇ & Lardner, intellectual property counsel to the Company.
(C) The Initial Purchaser shall have received a comfort letter, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of Stonefield ▇▇▇▇▇▇▇▇▇, Inc., registered independent auditor of the Company.
(D) The Initial Purchaser shall have received an opinion, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ US LLP, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretionPurchaser.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(eE) The representations and warranties of the Issuers Company contained in this Agreement 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; , and the statements of any Authorized Person 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 Company shall have performed complied in all covenants and respects with all covenants, agreements and satisfied all conditions on their its part to be 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; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchaser relating to the issuance or the trading of the Securities or the Initial Purchaser’ activities in connection therewith or any other transactions contemplated by this Agreement or the Prospectus 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 Memorandum Prospectus (exclusive of any amendment or supplement thereto after the date hereof), subsequent 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 Prospectus that is, in the judgment of the Initial Purchaser, 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 Prospectus, 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 made in the Prospectus untrue or that, in the opinion of the Company and its counsel or the reasonable judgment of the Initial Purchaser, requires the making of any addition to or change in the Prospectus 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 certificates, dated the Closing Date and signed by the President and Chief Executive Officer and the Chief Financial Officer of the Company, to the effect that:
(i) All of the representations and warranties of the Company set forth in this Agreement are true and correct on and as of the Closing Date, all covenants agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder in all respects on or prior the Closing Date have been duly performed, satisfied or complied with.
(ii) No event has occurred and is continuing, as a result of which the Prospectus including all exhibits and attachments thereto would 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 existing at the time it is delivered to the Initial Purchaser, not misleading.
(iii) The issuance and sale of the Notes pursuant to this Agreement and the Prospectus 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 issuance or the trading of the Securities or the Initial Purchaser’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Prospectus or the other Offering Documents.
(iv) Subsequent to the date of this Agreement and since the date of the most recent financial statements in such Memorandum the Prospectus (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (1) 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 contemplated by the Prospectus, or, in the judgment of the Initial Purchaser, could result in a Material Adverse Effect upon the Company, or (2) any event or development relating to or involving the Company or any Subsidiary or any of their respective officers or directors that, in the judgment of the Initial Purchaser, makes any statement made in the Prospectus untrue or that requires the making of any addition to or change in the Prospectus in order to state a material fact necessary in order to make the statements made therein not misleading.
(v) At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Prospectus Supplement there shall exist no Default or Event of Default (as defined in the Indenture).
(I) 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 Initial Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no event amendments, alterations, modifications or developmentwaivers of any provision thereof since the date of this Agreement.
(J) There shall have been Purchaser Letters executed and delivered by the Subsequent Purchasers agreeing to fund a total of $33,156,000 none of the Subsequent Purchasers shall have actually made or threatened to make any amendments, alterations, modifications, withdrawals, waivers or breaches with respect to its Purchaser Letter and/or its commitment set forth on Schedule 1 attached hereto or failed to perform in any respect with respect to its Purchaser Letter and/or its commitment set forth on Schedule 1 attached hereto and the Initial Purchaser shall have no reasonable good faith belief that such commitments or purchases will not be funded.
(K) All proceedings taken in connection with the issuance of the Notes 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 satisfactory to them.
(L) The Notes shall be eligible for clearance on DTC.
(M) At the Closing Date, the Company and the Trustee shall have entered into the Indenture, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, and no information the Initial Purchaser shall have become knownreceived counterparts, thatdated the Closing Date and executed by each of the parties thereto and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(N) There are no pending or threatened legal or governmental proceedings to which the Company or the Subsidiaries is a party or of which any property of the Company or the Subsidiaries is the subject, which, the Initial Purchaser believes, in its sole discretion, if determined adversely to the Company or the Subsidiaries, would individually or in the aggregate, has or would be reasonably likely to aggregate have a Material Adverse Effect.Effect on the financial position or results of operations of the Company and the Subsidiaries taken as a whole; and
(fO) The sale of the Securities hereunder There shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of have been executed by each of the Issuers shall not have been interfered Subsequent Purchasers, as listed on Schedule 1, an Exchange Agreement with by strike, labor dispute, slowdown, work stoppage, 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 Company representing an aggregate exchange of each $40,668,000 principal amount of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrenceCompany’s 5.75% Convertible Senior Secured Subordinated Notes due June 15, except any such interference2008 and the Company’s 5.75% Convertible Subordinated Notes due June 15, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate 2008 for $33,156,000 principal amount of the IssuersCompany’s 7.5% Convertible Senior Notes due April 26, dated 2011. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except provisions hereof only if they are satisfactory in all respects to the case of any Issuer organized under Initial Purchaser and counsel to the laws of Initial Purchaser. The Company shall furnish to the Netherlands, in which case, Initial Purchaser such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial 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 Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received opinionsthe opinion, in form and substance satisfactory to counsel for the Initial Purchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, substantially in the form of Exhibit A hereto. In rendering such opinion, ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇& ▇▇▇▇▇ & Ohno Advogados (Brazilian law); LLP shall have received and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, may rely upon such certificates and other documents and information as the case it may be, in each case, in form and substance satisfactory reasonably request to the Initial Purchasers in their reasonable discretionpass on such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersPurchaser, 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, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser.
(ed) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent Other than as disclosed in the Final Memorandum, subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers Purchaser shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)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 part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum, except as disclosed in the Final Memorandum (exclusive of any amendment or supplement thereto 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).
(h) On the Closing Date, the Initial 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.
(i) 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 Purchaser and counsel for the Initial Purchaser shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 Purchaser and counsel for the Initial Purchaser. The Company shall furnish to the Initial Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Town Sports International Holdings Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the The Initial Purchasers shall have received the opinion, opinion in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial PurchasersDate, of MilbankWeil, Tweed, ▇▇▇▇Gotshal & Mang▇▇ & ▇▇▇▇▇▇, counsel for the Initial PurchasersIssuers, with respect to certain legal matters relating to this Agreement and such other related matters as substantially in the Initial Purchasers may reasonably requireform of Exhibit B hereto. In rendering such opinion, MilbankWeil, Tweed, ▇▇▇▇Gotshal & Mang▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(db) The Initial Purchasers shall have received from the Independent Accountants a comfort letter an opinion or letters opinions, dated the date hereof Closing Date, of Lath▇▇ & ▇atk▇▇▇, ▇▇unsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and certain FCC regulatory matters, and such other related matters as the Initial Purchasers may require. In rendering such opinion or opinions, Lath▇▇ & ▇atk▇▇▇ ▇▇▇ll have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion or opinions, Lath▇▇ & ▇atk▇▇▇ ▇▇▇ state that their opinion or opinions is limited to matters of New York, California, Delaware corporate and federal law.
(c) The Initial Purchasers shall have received customary comfort letters from PricewaterhouseCoopers, LLP, Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, KPMG Peat Marwick LLP and BDO Seid▇▇▇ ▇▇▇, dated on or prior to the Closing Date, in each case addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and in all material respects 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 any Authorized Person 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 shall have performed complied in all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), and subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)the Offering Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or material adverse change in the aggregatebusiness, has condition (financial or would be reasonably likely to have other), results of operations or prospects of the Issuers, taken as a Material Adverse Effectwhole, except as set forth in, or contemplated by, the Offering Memorandum.
(fe) The issuance and sale of the Securities by the Issuers hereunder shall not be enjoined (temporarily or permanently) on the Closing DateDate and no restraining order or other injunctive order shall have been issued or any action, suit or proceeding shall have been commenced with respect to this Agreement or any other transactions hereby, before any court or governmental authority (including, without limitation, the FCC).
(f) Subsequent to the date as of which information is given in the Offering Memorandum, except as described in or as contemplated by the Offering Memorandum, none of the Issuers shall have incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business) that are material to the Issuers, 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), results of operations or prospects of the Issuers, taken as a whole, and, other than as contemplated by the Offering Memorandum, there shall not have been any change in the capital stock or long-term indebtedness of any Issuer that is material to the business, condition (financial or other), results of operations or prospects of the Issuers, taken as a whole.
(g) Subsequent to the date as of which information is given in the Offering Memorandum, the conduct of the business and operations of each the Company or any of the Issuers shall its subsidiaries has not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each the Company or any of the Issuers shall its subsidiaries have 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, whether individually or in the aggregate, have or be reasonably likely to not have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Vice President and Assistant Secretary of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Company, to the effect that:
(i) The representations and warranties of the Issuers in this Agreement are true and correct in all material respects as if made on and as of the Closing Date (other than to the extent any such representation or warranty is expressly made to a certain date), and each Issuer has performed in all material respects all covenants and agreements and satisfied, in all material respects, all conditions on their part to be performed or satisfied hereunder, to the extent a party thereto, at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Offering Memorandum, except as described in the Offering Memorandum, no event or events have occurred, nor has any information become known that, individually or in the aggregate, would have a Material Adverse Effect;
(iii) The issuance and sale of the Securities by the Issuers hereunder has not been enjoined (temporarily or permanently) by any court or governmental agency or body (including without limitation, the FCC); and
(iv) Subsequent to the respective dates as of which information is given in the Offering Memorandum, except in each case as described in or as contemplated by the Offering Memorandum, none of the Issuers has incurred any liabilities or obligations, direct or contingent, that are material to the Issuers, taken as a whole, or entered into any transactions that, individually or in the aggregate, would have a Material Adverse Effect; and there has been no change in the capital stock or long-term indebtedness of the Issuers that individually or in the aggregate would have a Material Adverse Effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect on the Closing Date.
(j) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers as they shall have heretofore reasonably requested from the Issuers. All such opinions, certificates, letters, schedules, documents 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments 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 Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US Ropes and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ LLP and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇& ▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)PLLP, counsel for the Issuer and/or the Guarantors, as the case may be, in each caseIssuers and NB Acquisition, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to counsel for the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory substantially to the Initial Purchasers effect set forth in their reasonable discretion.Exhibit B and Exhibit C.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of NB Acquisition contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and the representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and in all material respects on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Issuers’ and NB Acquisition’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 Issuers and NB Acquisition shall have performed all covenants and agreements and satisfied all conditions on their respective 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 Memorandum (whether or not audited)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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost 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 each none of the Issuers or any of the Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of each of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the NetherlandsIssuers by its respective Chairman of the Board, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such IssuerChief Financial Officer (or similar position), to the effect that:
(i) the representations and warranties of the Issuers contained in this Agreement are true and correct in all material respects on the Closing Date, and the Issuers 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;
(ii) at the Closing Date, except as disclosed in the Final Memorandum, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto 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) to the knowledge of the Issuers, the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect.
(i) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(j) The Notes shall be designated Portal-eligible securities in accordance with the rules and regulations of the NASD.
(k) On the Closing Date, the Company shall have entered into the Credit Agreement in form and substance reasonably satisfactory to the Initial Purchasers; and
(l) The “Transaction,” as such term is defined in the Final Memorandum, will be consummated substantially as described in the Final Memorandum. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers, NB Acquisition and the Subsidiaries as they shall have heretofore reasonably requested from the Issuers and NB Acquisition. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Nb Finance Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Shares shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsthe opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg Shack & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ , P.C. (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law"Company Counsel"), counsel for the Issuer and/or the Guarantors, as the case may be, in each caseCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers. In rendering such opinion, Company Counsel may rely upon such certificates and other documents and information as it may reasonably require to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("FCC Counsel"), in-house legal FCC counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers. In rendering such opinion, FCC Counsel may rely upon such certificates and other documents and information as it may reasonably require to pass upon such matters.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇ Breed ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ("Tax Counsel"), tax counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers. In rendering such opinion, Tax Counsel may rely upon such certificates and other documents and information as it may reasonably require to pass upon such matters.
(d) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ Shearman & ▇▇▇▇▇▇Sterling, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters manners as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ Shearman & ▇▇▇▇▇▇ Sterling shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(de) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ef) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)Offering 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 could reasonably be reasonably likely expected to have a Material Adverse Effect.
(fg) The sale of the Securities Shares hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gh) Subsequent to the date of the Memorandummost recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct business or operations of the business and operations of each of the Issuers Company shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, and the Company and its properties of each of the Issuers shall not have sustained any loss or damage (damage, whether or not insured) covered by insurance, as a result of any such occurrence, except any such interference, loss or damage which would nothas not had, whether individually or in the aggregateand could not reasonably be expected to have, have or be reasonably likely to have a Material Adverse Effect.
(hi) The Initial Purchasers shall have received a certificate certificates of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by any two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which caseChief Executive Officer, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)President, Chief Financial Officer and any Senior Vice President to the effect that:
(A) 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 part to be performed or satisfied hereunder at or prior to the Closing Date;
(B) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known that individually or in the aggregate, has or could reasonably be expected to have a Material Adverse Effect;
(C) The sale of the Shares hereunder has not been enjoined (temporarily or permanently); and
(D) Such other information as the Initial Purchasers may reasonably request.
(j) 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. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or agreements relating to the business, corporate, legal and financial affairs of the Company as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments 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 Securities shall, in their sole discretion, be hereunder are subject to the satisfaction or waiver accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein, to the performance by the Company and the Guarantors of its obligations hereunder, and to each of the following conditions on or prior to the Closing Dateadditional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received opinions, dated as of the Closing Date discovered and addressed disclosed to the Initial PurchasersCompany 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 each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); & ▇▇▇▇▇▇▇ LLP, 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, 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) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory LLP shall have furnished to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an its written opinion, dated as of counsel to the Closing Date and Company, addressed to the Initial PurchasersPurchasers and dated such Delivery Date, of 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) ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇, in-house legal counsel for General Counsel of the IssuersCompany, in form and substance satisfactory shall have furnished to the Initial Purchasers his written opinion, as General Counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date in their reasonable discretion.the form attached hereto as Exhibit B.
(ce) On the Closing Date, the The Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the 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, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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.;
(df) The At the time of the First Delivery Date, the Initial Purchasers shall have received from the Independent Accountants each of PricewaterhouseCoopers, LLP and KPMG LLP a comfort letter or letters dated 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 (ei) The representations and warranties confirming that they are independent public accountants within the meaning of the Issuers contained Securities Act and under Rule 101 of AICPA's Code of Professional Conduct and are in this Agreement shall be true compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and correct on 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;
(g) 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 to the Initial Purchasers a letter (the "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 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;
(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, their respective President or a Vice President and their respective chief financial officer, in form and substance satisfactory to the Initial Purchasers stating that:
(i) The representations, warranties and agreements of the Company and the Guarantors in Section 1 are true and correct as of the date given and as of such Delivery Date; and the Company and the Guarantors have complied with all their agreements contained herein to be performed prior to or on such Delivery Date; and
(ii) 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 as if made on did not include any untrue statement of a material fact and as did not omit to state any material fact necessary to make the statements therein, in light of the Closing Date; the statements of any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true circumstances under which they were made, not misleading, and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to B) since the date of the most recent financial statements in such Memorandum (whether or not audited)Offering Memorandum, there shall no event has occurred which should have been no event set forth in a supplement or development, and no information shall have become known, that, individually or in amendment to the aggregate, has or would be reasonably likely to have a Material Adverse EffectOffering Memorandum.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gi) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the 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 (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;
(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, 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 shall have sustained since the date of the Memorandum, latest audited financial statements included in the conduct of the Offering Memorandum any loss or interference with its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, from fire, floodexplosion, hurricane, accident flood or other calamity (calamity, whether or not insured) covered by insurance, or by from any labor dispute or court or governmental action, order or decree, andexcept (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 shall not have been any change in the capital stock or long-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 change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, except as otherwise stated thereinset forth or incorporated by reference or contemplated in the Offering Memorandum, the properties effect of each which, in any such case described in clause (i) or (ii), is, in the reasonable judgment of the Issuers 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 in the Offering Memorandum;
(n) Subsequent to the execution and delivery of this Agreement there shall not have sustained occurred any loss of the following:
(i) trading in securities generally on the NYSE, the American Stock Exchange, the NASDAQ National Market or damage 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 materially limited or the settlement of such trading generally shall have been materially disrupted 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;
(whether ii) a banking moratorium shall have been declared by Federal or not insured) state authorities of the United 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 occurrencea material adverse change in general domestic or international economic, except any such interferencepolitical or financial conditions, loss including without limitation as a result of terrorist activities after the date hereof, or damage which would not, whether individually or the effect of international conditions on the financial markets in the aggregateUnited States shall be such, have or be reasonably likely as to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except 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 the Company's debt securities by any Issuer organized "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the laws 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 NetherlandsCompany's debt securities. All opinions, letters, evidence and certificates mentioned above or elsewhere in which case, such certificate this Agreement shall be signed by one Authorized Person who shall deemed to be in compliance with the managing director of such Issuer), provisions hereof only if they are in form and substance satisfactory to counsel to the effect that:Initial Purchasers.
Appears in 1 contract
Sources: Purchase Agreement (L 3 Communications Holdings Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, Bonds shall be subject to the satisfaction or waiver accuracy on the date hereof and on the Closing Date of the following conditions representations and warranties made herein on or prior the part of the Company and of any certificates furnished by the Company on the Closing Date and to the Closing Datefollowing conditions:
(a) On At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); from ▇▇▇▇ ▇. ▇▇▇▇▇▇ , Esq., Senior Counsel-Corporate and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇Securities of Entergy Services, Inc., and ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP opinions, dated the Closing Date, substantially in the forms set forth in Exhibits A and B hereto, respectively (it being understood that ▇▇. ▇▇▇▇ (Maltese law); Stroeter, may rely on an opinion of ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel L.L.P. as to matters in his opinion relating to Texas law provided that the Initial Purchasers are addressees to, or are otherwise entitled to rely on, such opinion), (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Initial Purchasers, with respect and (ii) if the Offering Memorandum shall be supplemented after being furnished to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering for use in offering the Bonds, with changes therein to reflect such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matterssupplementation.
(dc) The At the Closing Date, the Initial Purchasers shall have received from Counsel for the Independent Initial Purchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the Closing Date.
(d) At the Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP, the Company's independent certified public accountants (the "Accountants"), a letter dated the Closing Date and addressed to the Initial Purchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and 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 applicable published rules and regulations thereunder; (iii) on the basis of performing the procedures specified by the AICPA for a comfort review of interim financial information as described in SAS No. 100, Interim Financial Information, on the latest unaudited financial statements, if any, incorporated by reference in the Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2002 to a specified date not more than five days prior to the date of such letter, and inquiries of officers 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 they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; and (C) at a specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or letters dated decrease in its net assets or shareholders' equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records 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 do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement.
(e) At the Closing Date, the Initial Purchasers shall have received a certificate signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the Company, to the effect that (i) the representations and warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Purchase Agreement to be performed or complied with by the Company at or prior to the Closing Date and (iii) since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in each case other than as referred to in, or contemplated by, the Offering Memorandum, as it may then be amended or supplemented.
(f) At the Closing Date, the Initial Purchasers shall have received duly executed counterparts of the Supplemental Indenture.
(g) Between the date hereof and the Closing Date, no default (or an event which, with the giving of notice or the passage of time or both, would constitute a default) under the Mortgage (as defined therein) shall have occurred.
(h) On or prior to the Closing Date, the Initial Purchasers shall have received from the Company evidence reasonably satisfactory to the Initial Purchasers that the Bonds have received ratings of Baa3 or better from ▇▇▇▇▇'▇ Investors Service, Inc. and BBB- or better from Standard & Poor's Ratings Services.
(i) Between the date hereof and the Closing Date, neither ▇▇▇▇▇'▇ Investors Service, Inc. nor Standard & Poor's Ratings Services shall have lowered its rating of any of the Company's outstanding first mortgage bonds in any respect.
(j) Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, which, in the reasonable opinion of Barclays Capital Inc. and Citigroup Global Markets Inc., as representatives of the Initial Purchasers, materially impairs the investment quality of the Bonds.
(k) All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance satisfactory to counsel Counsel for the Initial Purchasers.
(el) The representations Company shall furnish the Initial Purchasers with additional conformed copies of such opinions, certificates, letters and warranties documents as may be reasonably requested. If any of the Issuers contained conditions specified in this Agreement 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 any Authorized Person 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 shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers Section 6 shall not have been interfered with fulfilled, this Purchase Agreement may be terminated by strikeBarclays Capital Inc. and Citigroup Global Markets Inc., labor disputeon behalf of the Initial Purchasers, slowdown, work stoppage, fire, flood, hurricane, accident or upon notice thereof to the Company. Any such termination shall be without liability of any party to any other calamity (whether or not insured) or by any court or governmental action, order or decree, andparty, except as otherwise stated therein, the properties provided in paragraph (d) of each of the Issuers 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, whether individually or Section 5 and in the aggregate, have or be reasonably likely to have a Material Adverse EffectSection 9.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇Dechert LLP, in-house legal counsel for the IssuersCompany, in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretionRepresentative. In rendering such opinion, Dechert 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) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Company Independent Accountants a customary comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited or pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Company Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum.
(d) On the date hereof, the Initial Purchasers shall have received from the ClosetMaid Independent Accountants a customary comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the ClosetMaid Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Guarantors’ 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 Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 expected to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which caseChief Executive Officer, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company, that, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(i) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Guarantors and such agreement shall be in full force and effect and in form and substance reasonably satisfactory to the Representative. On the Closing Date, the Indenture shall continue to be in full force and effect and the Initial Purchasers shall have received an executed copy of the Authentication Order (as defined in the Indenture) required by Section 2.02 of the Indenture with respect to the issuance of the New Notes.
(j) On the date hereof, the Initial Purchasers shall have received a certificate of the Company, signed on behalf of the Company by its Chief Financial Officer regarding ClosetMaid’s financial information for the year ended September 30, 2017, substantially in the form attached hereto as Exhibit C.
(k) On the Closing Date, the Initial Purchasers shall have received a certificate of the Company, signed on behalf of the Company by its Chief Financial Officer regarding ClosetMaid’s financial information for the year ended September 30, 2017, substantially in the form attached hereto as Exhibit C. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company, the Guarantors and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shallhereunder shall be subject, in their sole discretion, be subject to the satisfaction or waiver condition that all representations and warranties and other statements of the Company herein are, at and as of each Time of Delivery, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following conditions on or prior to the Closing Dateadditional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, shall have furnished to you such opinion or opinions, dated such 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), Milbankcounsel for the Company, Tweed, and ▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇ , 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;
(dc) 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 the Independent Accountants furnished to you a comfort letter or letters letters, dated the date hereof and the Closing Daterespective dates of delivery thereof, in form and substance satisfactory to counsel for the Initial Purchasers.you;
(ei) The representations and warranties Neither the Company nor any of the Issuers contained in this Agreement 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 any Authorized Person 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 its subsidiaries shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to sustained since the date of the most recent latest audited financial statements included in such Memorandum (the Pricing Circular any loss or interference with its business from fire, explosion, flood or other calamity, whether or not audited)covered by insurance, there shall have been no event or development, and no information shall have become known, that, individually from any labor dispute or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, andotherwise than as set forth or contemplated in the Pricing Circular, except and (ii) since the respective dates as of which information is given in the Pricing Circular there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries 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 stated thereinthan as set forth or contemplated in the Pricing Circular, the properties 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 of the Issuers Pricing Disclosure Package and the Offering Circular;
(e) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by 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 sustained occurred any loss of the following: (i) a suspension or damage material limitation in trading in securities generally on the New York Stock Exchange or on NASDAQ; (whether ii) a suspension or not insuredmaterial limitation in trading in the Company’s securities on NASDAQ; (iii) as a result 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 occurrence, except any such interference, loss event specified in clause (iv) or damage which would not, whether individually (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 aggregatemanner contemplated in the Pricing Disclosure Package and the Offering Circular;
(g) A number of shares of Common Stock equal to the Maximum Number of Underlying Securities shall have been duly listed, have or be reasonably likely subject to have a Material Adverse Effect.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 a certificate an executed original copy of the Issuers, dated Indenture;
(j) The Securities shall be eligible for clearance and settlement through the Closing Date, signed on behalf facilities of each Issuer by two Authorized Persons DTC; and
(except in the case k) The Company shall have furnished or caused to be furnished to you at such Time of any Issuer organized under the laws Delivery certificates of officers of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be Company satisfactory to you as to the managing director accuracy of the representations and warranties of the Company herein at and as of such Issuer)Time of Delivery, as to the effect that: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.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsthe opinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); i) ▇▇▇▇ ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); & ▇▇▇▇▇▇▇▇▇ ▇▇LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, and substantially as set forth in Annex B and (ii) Winston & ▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or the Guarantors, as the case may be, in each caseCompany, in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to counsel for the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, and substantially as set forth in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.Annex C.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct correct, in all material respects, on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects; the statements of any Authorized Person the Company’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct correct, in all material respects, on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers Representative shall have received a certificate of from the IssuersCompany and each Guarantor, dated the Closing Date, signed on behalf of each Issuer the Company or such Guarantor by two Authorized Persons its (except in i) Chief Executive Officer, President or any Senior Vice President or executive officer performing similar functions with respect to such Guarantor and (ii) the case of any Issuer organized under the laws of the Netherlands, in which case, Chief Financial Officer or executive officer performing similar functions with respect to such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Guarantor, to the effect that:
(i) the representations and warranties of the Company or such Guarantor contained in this Agreement are true and correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects, and the Company or such Guarantor 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or such Guarantor, that, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement and the Indenture executed by the Company, the Guarantors and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(i) The Notes shall be eligible for clearance and settlement through The Depository Trust Company. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 Representative and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Representative such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Representative shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be Notes are subject to the satisfaction or waiver accuracy, when made and on and as of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(i) The Initial Purchasers shall have received opinions, dated as of the Closing Date opinions in form and addressed substance reasonably satisfactory to the Initial Purchasers, dated the Closing Date, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of ▇▇▇▇▇▇ ▇▇and ▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)Hong Kong) LLP, counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretionCompany, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(bii) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as opinion of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial Purchasers, 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 may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(diii) The Initial Purchasers shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, independent registered public accountants for the Independent Accountants a comfort letter or letters dated Company, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for to the Initial Purchasers, letters dated the date hereof and the Closing Date confirming that is an independent registered public accountant 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 financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering Memorandum.
(eiv) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and 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 material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. 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, as of the Closing Date 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 in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package 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 issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Disclosure Package and the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and 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 material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fx) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities hereunder shall not be enjoined as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(temporarily or permanentlyxii) on At the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of Company and the business Trustee shall have entered into the Indenture and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the IssuersNotes will be duly listed, dated subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except provisions hereof only if they are reasonably satisfactory in all material respects to the case of any Issuer organized under Initial Purchasers and counsel to the laws of Initial Purchasers. The Company shall furnish to the Netherlands, in which case, Initial Purchasers such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that: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 Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, substantially in the form of Exhibit B hereto. 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; and
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇, in-house legal Pope, ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, Florida counsel for the IssuersCompany, substantially in the form of Exhibit C hereto. In rendering such opinion, ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP shall have received and substance satisfactory may rely upon such certificates and other documents and information as it may reasonably request to the Initial Purchasers in their reasonable discretionpass upon such matters.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)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.
(f) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandummost 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 each of the Issuers Company shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be Chief Executive Officer or the managing director of such Issuer)Chief Operating Officer 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 part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(i) On or prior to the Closing Date, the Company shall have entered into a new senior secured revolving credit facility in form and substance reasonably satisfactory to the Initial Purchasers.
(j) On or prior to the Closing Date, the Company shall have entered into an amended and restated floor plan credit facility providing for up to $85.0 million in floor plan financing for purchases of vehicle inventory in form and substance reasonably satisfactory to the Initial Purchasers.
(k) 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.
(l) The Acquisition Agreement shall have been entered into by all parties thereto and shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments 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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Dateconditions:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial PurchasersDate, of Kaye, ▇▇▇ holer, Fierman, Hays & ▇▇▇ ▇▇▇▇▇andler, in-house legal LLP, counsel for the IssuersIssuer and the Guarantors, in substantially the form and substance satisfactory of Exhibit B hereto. References to the Initial Purchasers Final Memorandum in their reasonable discretionsuch opinion shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(c) On the Closing Date, the The Initial Purchasers shall have received the an opinion, in form and substance satisfactory dated the Closing Date, of Price Waterhouse, LLP, tax advisors to the Issuer and the Guarantors, with respect to certain tax matters related to the Issuer and the Guarantors, in the form of Exhibit D hereto.
(d) The Initial PurchasersPurchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial PurchasersDate, of Milbank, Tweed, Cahi▇▇ ▇▇▇▇▇▇ & ▇▇▇ein▇▇▇, counsel ▇▇unsel for the Initial Purchasers, with respect to the sufficiency of certain corporate proceedings and other legal matters relating to this Agreement Agreement, and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇ ▇▇▇▇▇ shall ll have received and may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering their opinion, Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇ ▇▇▇ state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(de) The Initial Purchasers shall have received from Coopers & Lybr▇▇▇ ▇▇▇, independent public accountants for the Independent Accountants a comfort letter or Issuer, letters dated dated, respectively, the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel the Initial Purchasers and Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇, ▇▇unsel for the Initial Purchasers.
(ef) The representations and warranties of the Issuers contained in this Agreement Initial Purchasers shall be true and correct on and as of have received from Arth▇▇ Ande▇▇▇▇ ▇▇▇, independent public accountants for Caterair, letters dated, respectively, the date hereof and on the Closing Date, in form and as substance reasonably satisfactory to the Initial Purchasers and Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇, ▇▇unsel for the Initial Purchasers.
(g) The issuance and sale of the Securities pursuant to this Agreement shall not be enjoined (temporarily or permanently) and no action, suit or proceeding shall have been commenced with respect to any court or governmental authority.
(h) The Initial Purchasers shall have received a certificate or certificates, dated the Closing Date Date, of an officer of the Issuer, Caterair and each Guarantor to the effect that to the best of such officers' knowledge after reasonable inquiry:
(A) tors in this Agreement, the SCIS Credit Agreement, the Caterair Credit Agreement and the Dealer Manager Agreement are true and correct in all material respects as if made on and as of the Closing Date; , and the statements of any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true Issuer, Caterair and correct on and as each of the date made and on and as of the Closing Date; the Issuers shall Subsidiary Guarantors have performed in all material respects all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and;
(B) At the Closing Date, except as described since the date hereof or since the date of the most recent financial statements 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 Memorandum (whether or not audited), there shall have been no event or developmentevents have occurred, and no information shall have has become known, known nor does any condition exist that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.; and
(fC) The sale of the Securities hereunder shall has not be been enjoined (temporarily or permanently).
(i) on On the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated Registration Rights Agreement executed by the Issuer and the Guarantors and such agreement shall be in full force and effect.
(j) On or before the Closing Date, signed on behalf the Senior Bank Financing shall have been consummated and the Existing Credit Agreement shall be fully repaid and terminated.
(k) The Issuer and Caterair, CII and Sky Chefs, as guarantors, and the Bank of each Issuer by two Authorized Persons New York, as trustee, shall have entered into a supplemental indenture to the indenture dated as of September 15, 1995 (except the "Old Indenture") governing the Old Notes which shall be entered into in accordance with the case of any Issuer organized under the laws terms of the NetherlandsOld Indenture and shall provide for removal of sections 4.10, in which case4.11, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)4.12, to the effect that:4.13, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, and 5.01
Appears in 1 contract
Sources: Purchase Agreement (Caterair International Inc /Ii/)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date or any Option Closing Date:
(a) On the Closing Date and on any Option Closing Date, the Initial Purchasers shall have received opinionsthe opinion, dated as of the such Closing Date or Option Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US Mintz, Levin, Cohn, Ferris, Glovsky and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)Popeo PC, counsel for the Issuer and/or the Guarantors, as the case may beCompany, in each case, in the form and substance satisfactory to the Initial Purchasers in their reasonable discretionof Annex B hereto.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the or any Option Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the such Closing Date or Option Closing Date, as the case may be, and addressed to the Initial Purchasers, of Milbank, Tweed, L▇▇▇▇▇ & W▇▇▇▇▇▇ & ▇▇▇▇▇▇LLP, counsel for 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 opinion, Milbank, Tweed, L▇▇▇▇▇ & W▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from EisnerAmper LLP a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date and any Option Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Offering Memorandum.
(ed) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date and any Option Closing Date as if made on and as of the such Closing Date or Option Closing Date; the statements of any Authorized Person 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 such Closing Date or Option Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date or Option Closing Date; and, except as described in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)Pricing Disclosure Package and the Final Offering 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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date or any Option Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date and any Option Closing Date, as the case may be, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)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 Time of Execution and on and as of such Closing Date or Option 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 such Closing Date or Option Closing Date;
(ii) at such Closing Date or Option Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(h) An application for the listing of the Common Stock that the Company is authorized to issue as of the date hereof shall have been submitted to the NYSE MKT.
(i) The Company shall have caused each executive officer, director and shareholder of the Company set forth on Schedule 3 hereto to execute and deliver to the Initial Purchasers, on or prior to the date of this Agreement, a letter or letters, substantially in the form attached hereto as Annex C (the “Lock-up Agreement”).
(j) The Company shall have amended its asset-based revolving senior secured credit facility with General Electric Capital Corporation, as agent for GE Capital Bank, in form and substance reasonably satisfactory to counsel for the Initial Purchasers. On or before the Closing Date and any Option Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments 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 Securities shallFirm Notes on the Closing Date and the Optional Notes on the Additional Closing Date, in their sole discretionif any, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Company of its covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date and addressed counsel to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, Company in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial Purchasers, dated the Closing Date, and again on the Additional Closing Date, if any, of ▇▇▇▇▇▇ & Bird LLP, substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇ & Bird LLP shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ & Bird LLP, may state that their opinion is limited to matters of Georgia, New York and federal law.
(ii) The Initial Purchasers shall have received an opinion of counsel to the Company in form and substance satisfactory to the Initial Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, dated the Closing Date, and again on the Additional Closing Date, if any, of the General Counsel of the Company, substantially in the form of Exhibit C hereto.
(iii) The Initial Purchasers shall have received an opinion, dated the Closing Date, and again on the Additional Closing Date, if any, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(div) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP, independent public accountants for the Independent Accountants a comfort letter or Company, “comfort” letters dated the date hereof and the Closing Date and the Additional Closing Date, if any, in form and substance reasonably satisfactory to the Initial Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the Initial Purchasers.
(ev) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date in all material respects as if made on and as of the Closing Date and the Additional Closing Date, if any; the statements of any Authorized Person 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 Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and.
(vi) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Circular and the Company and the Subsidiaries shall not have any liabilities or obligations, except contingent or otherwise (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 Final Circular.
(vii) Subsequent to the execution and delivery of this Agreement and since the date of the most recent financial statements in the Final Circular (exclusive of any amendment or supplement thereto after the date hereof) (a) no Material Adverse Effect shall have occurred or shall exist, which event or condition is not described in the Memorandum Final Circular (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 Notes on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement and the Final Circular and (b) there shall not have occurred any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement of a material fact untrue or omits to state a material fact in the Final Circular or that, 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 Final Circular in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) None of the issuance and sale of the Notes pursuant to this Agreement or any of the transactions contemplated by any of the Transaction 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, order, decree or other administrative proceeding instituted or threatened against the Company or against the Initial Purchasers relating to the issuance of the Notes or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Final Circular or the Transaction Documents.
(ix) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Circular (exclusive of any amendment or supplement thereto after the date hereof), subsequent 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, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by or disclosed in the Final Circular that, 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 any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries, that makes any statement of a material fact untrue or omits to state a material fact in the Final Circular or that, 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 Final Circular in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(x) The Initial Purchasers shall have received certificates, dated the Closing Date and the Additional Closing Date, if any, and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct in all material respects as if made on and as of the Closing Date and the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Notes pursuant to this Agreement or the Final Circular and the consummation of the transactions contemplated by the Transaction 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 threatened against the Company relating to the issuance of the Notes or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Final Circular or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such Memorandum the Final Circular (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties, prospects or results of operations of the Company and its Subsidiaries, taken as a whole, not contemplated by or disclosed in the Final Circular that would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or its Subsidiaries that makes any statement of a material fact untrue or omits to state a material fact in the Final Circular or that requires the making of any addition to or change in the Final Circular in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
d. There has not been any change in the capital stock of the Company or its Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Circular and the Company and its Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Company and its Subsidiaries, taken as a whole, other than those reflected in the Final Circular.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement or the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(xi) Each of the Transaction Documents and each other agreement or instrument executed in connection with the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fxii) All proceedings taken in connection with the issuance of the Notes and the transactions contemplated by this Agreement, the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. The Initial Purchaser and counsel to the Initial Purchasers 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.
(xiii) The Company shall apply the proceeds from the issuance and sale of the Securities hereunder Notes as described under “Use of Proceeds” in the Final Circular.
(xiv) There shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xv) On or before the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement, substantially in the form attached as Exhibit A, executed by the Company and such agreement shall be enjoined (temporarily or permanently) on in full force and effect at all times from and after the Closing Date.
(gxvi) Subsequent The Company shall have furnished or caused to be furnished to the date of Initial Purchasers such further certificates and documents as the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have reasonably requested.
(xvii) The Initial Purchaser shall have received a certificate on and as of the Issuers, dated Closing Date or the Additional Closing Date, signed as the case may be, satisfactory evidence of the good standing of the Company and the Subsidiaries listed on behalf Schedule III in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Initial Purchasers may reasonably request, in each Issuer by two Authorized Persons case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(except xviii) The “lock-up” agreements, each substantially in the case form of any Issuer organized under Exhibit D hereto, between the laws Initial Purchasers and each of the Netherlandsexecutive officers and directors of the Company listed on Exhibit D-1 hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, in which casedelivered to the Initial Purchasers as of the date hereof, such certificate shall be signed by one Authorized Person who in full force and effect on the Closing Date or the Additional Closing Date, as the case may be. All such opinions, certificates, letters, schedules, documents 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 and counsel to the Initial Purchasers. The Company shall be furnish to the managing director Initial Purchasers such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial 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 Securities shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇ ▇▇▇ ▇▇▇▇▇Dechert LLP, in-house legal counsel for the IssuersCompany, in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably requirePurchaser. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Dechert 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.
(db) The On the Closing Date, the Initial Purchasers Purchaser shall have received 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 Purchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial 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) On the date hereof, the Initial Purchaser shall have received from the Independent Accountants a customary comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchaser with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchaser shall have received from the Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Guarantors’ 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 Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers Purchaser shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which caseChief Executive Officer, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchaser) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company, that, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Company and the Guarantors and such agreement shall be in full force and effect and in form and substance reasonably satisfactory to the Initial Purchaser. On the Closing Date, the Indenture shall continue to be in full force and effect and the Initial Purchaser shall have received an executed copy of the Authentication Order (as defined in the Indenture) required by Section 2.02 of the Indenture with respect to the issuance of the New Notes. On or before the Closing Date, the Initial Purchaser and counsel for the Initial Purchaser shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company, the Guarantors and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 Purchaser and counsel for the Initial Purchaser. The Company and the Guarantors shall furnish to the Initial Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Firm Notes and the Optional Notes, as the case may be, shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date (references to the Closing Date in this Section 7 shall apply to the Subsequent Closing Date:, if applicable):
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ L.L.P., in-house legal counsel for the IssuersCompany, covering the opinion points set forth in form and substance satisfactory to the Initial Purchasers in their reasonable discretionSchedule 3.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants each of Ernst & Young LLP and ▇▇▇▇▇▇▇▇ LLP, a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited or pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from each of Ernst & Young LLP and ▇▇▇▇▇▇▇▇ LLP, a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum.
(d) The Initial Purchasers shall have received, on the Closing Date, a certificate dated the Closing Date in form of Exhibit A hereto, from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial Officer of the Company, with respect to certain financial information contained in the Pricing Disclosure Package and the Final Memorandum.
(e) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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 Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(f) The sale of the Securities Notes or the Conversion Shares hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)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 Time of Execution and 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 hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto 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 Notes and Conversion Shares hereunder has not been enjoined (temporarily or permanently).
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives, a letter substantially in the form of Annex B hereto from each officer and director of the Company addressed to the Representatives.
(i) An application for the listing of the Maximum Number of Conversion Shares shall have been approved by The NASDAQ Global Select Market, subject to official notice of issuance. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (LGI Homes, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, Bonds shall be subject to the satisfaction or waiver accuracy on the date hereof and on the Closing Date of the following conditions representations and warranties made herein on or prior the part of the Company and of any certificates furnished by the Company on the Closing Date and to the Closing Datefollowing conditions:
(a) On At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); from M▇▇▇ ▇. ▇▇▇▇▇▇ , Esq., Senior Counsel-Corporate and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇Securities of Entergy Services, Inc., and T▇▇▇▇▇ ▇▇▇▇ & Priest LLP opinions, dated the Closing Date, substantially in the forms set forth in Exhibits A and B hereto, respectively (it being understood that M▇. ▇▇▇▇ (Maltese law); Stroeter, may rely on an opinion of O▇▇▇▇▇, B▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian lawT▇▇▇▇▇, L.L.P. as to matters in his opinion relating to Texas law provided that the Initial Purchasers are addressees to, or are otherwise entitled to rely on, such opinion), counsel (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Issuer and/or Initial Purchasers, and (ii) if the Guarantors, as the case may be, in each case, in form and substance satisfactory Offering Memorandum shall be supplemented after being furnished to the Initial Purchasers for use in their reasonable discretionoffering the Bonds, with changes therein to reflect such supplementation.
(bc) On At the Closing Date, the Initial Purchasers shall have received from Counsel for the Initial Purchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of the Closing Date and addressed Offering Memorandum prior to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretionClosing Date.
(cd) On At the Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP, the opinionCompany,s independent certified public accountants (the "Accountants"), in form and substance satisfactory to the Initial Purchasers, a letter dated as of the Closing Date and addressed to the Initial PurchasersPurchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and incorporated by reference in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of Milbankthe Exchange Act and the applicable published rules and regulations thereunder; (iii) on the basis of performing the procedures specified by the AICPA for a review of interim financial information as described in SAS No. 100, TweedInterim Financial Information, ▇▇▇▇▇▇ & ▇▇▇▇▇▇on the latest unaudited financial statements, counsel if any, incorporated by reference in the Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2002 to a specified date not more than five days prior to the date of such letter, and inquiries of officers 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 they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (C) at the date of the latest available balance sheet read by the Accountants, and at a subsequent specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholders, equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (D) for the period from the closing date of the most recent income statement incorporated by reference in the Offering Memorandum to the closing date of the latest available income statement read by the Accountants, there were any decreases, as compared to the corresponding period in the preceding year, in operating revenues, operating income or net income, except in all instances for decreases which the Offering Memorandum discloses have occurred or may occur or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, 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 opinionresults obtained from the application of specified readings, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates inquiries and other documents appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and information as it may reasonably request found them to pass upon such mattersbe in agreement.
(de) The At the Closing Date, the Initial Purchasers shall have received from a certificate signed by the Independent Accountants President, a comfort letter Vice President, the Treasurer or letters dated an Assistant Treasurer of the Company, to the effect that (i) the representations and warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Purchase Agreement to be performed or complied with by the Company at or prior to the Closing Date and (iii) since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in each case other than as referred to in, or contemplated by, the Offering Memorandum, as it may then be amended or supplemented.
(f) At the Closing Date, the Initial Purchasers shall have received duly executed counterparts of the Supplemental Indenture and the Registration Rights Agreement.
(g) Between the date hereof and the Closing Date, no default (or an event which, with the giving of notice or the passage of time or both, would constitute a default) under the Mortgage (as defined therein) shall have occurred.
(h) On or prior to the Closing Date, the Initial Purchasers shall have received from the Company evidence reasonably satisfactory to the Initial Purchasers that the Bonds have received ratings of Baa3 or better from M▇▇▇▇,s Investors Service, Inc. and BBB- or better from Standard & Poor,s Ratings Services.
(i) Between the date hereof and the Closing Date, neither M▇▇▇▇,s Investors Service, Inc. nor Standard & Poor,s Ratings Services shall have lowered its rating of any of the Company,s outstanding first mortgage bonds in any respect.
(j) Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, which, in the reasonable opinion of Banc One Capital Markets, Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated, as representatives of the Initial Purchasers, materially impairs the investment quality of the Bonds.
(k) All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance satisfactory to counsel Counsel for the Initial Purchasers.
(el) The representations Company shall furnish the Initial Purchasers with additional conformed copies of such opinions, certificates, letters and warranties documents as may be reasonably requested. If any of the Issuers contained conditions specified in this Agreement 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 any Authorized Person 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 shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers Section 6 shall not have been interfered with fulfilled, this Purchase Agreement may be terminated by strikeBanc One Capital Markets, labor disputeInc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated, slowdownon behalf of the Initial Purchasers, work stoppage, fire, flood, hurricane, accident or upon notice thereof to the Company. Any such termination shall be without liability of any party to any other calamity (whether or not insured) or by any court or governmental action, order or decree, andparty, except as otherwise stated therein, the properties provided in paragraph (d) of each of the Issuers 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, whether individually or Section 5 and in the aggregate, have or be reasonably likely to have a Material Adverse EffectSection 9.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several ------------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be are subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for to the Initial Purchasers, dated the Closing Date, of each of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Notes Issuers, substantially in the form of Exhibit C hereto and (ii) Weil, --------- Gotshal & ▇▇▇▇▇▇ LLP, counsel to Old Muzak, substantially in the form of Exhibit D hereto. In rendering such opinions, each such counsel shall have --------- received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchasers, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP and Deloitte & Touche LLP, independent public accountants for the Independent Accountants a comfort letter or Company and Old Muzak, "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for to the Initial Purchasers.
(eiv) The representations and warranties of the Issuers contained in this Agreement 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 any Authorized Person 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 shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) None of the issuance and sale of the Securities pursuant to this Agreement or any of the Transactions or any of the other transactions contemplated by any of the other Offering Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Offering Documents or the Transaction Documents.
(vi) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Notes Issuers, the Subsidiaries, Old Muzak and the Muzak Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Notes Issuers, the Subsidiaries, Old Muzak or the Muzak Subsidiaries, or any of their respective officers or directors that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Notes Issuers and their counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(vii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of each Issuer (in their capacities as such), to the effect that:
a. All of the representations and warranties of such Issuer set forth in this Agreement are true and correct as if made on and as of the Closing Date and such Issuer has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction 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 such Issuer relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Offering Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Final Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Notes Issuers, the Subsidiaries, Old Muzak and the Muzak Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Notes Issuers, the Subsidiaries, Old Muzak and the Muzak Subsidiaries or any of their respective officers or directors that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(viii) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or developmentwaivers of any provision thereof since the date of this Agreement. On the Closing Date, the New Credit Agreement shall provide for revolving credit and no information term loan borrowings in such amounts as are sufficient to consummate the Transactions to be consummated on the Closing Date and substantially as described in the Final Memorandum.
(ix) The Company shall have received cash equity financing pursuant to the Equity Contribution in such an amount as is sufficient to consummate the Transactions to be consummated on the Closing Date, substantially as described in the Final Memorandum.
(x) The Certificate of Merger with respect to the Merger shall have been filed with the Secretary of State of the State of Delaware and shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effecteffective.
(fxi) The Each of the Proposed Amendments to the Muzak Notes shall have been approved by the requisite percentage of holders of Muzak Notes; simultaneously with the closing of the sale of the Notes by the Notes Issuers, the Notes Issuers shall have accepted for payment and have instructed the depositary with respect thereto to pay to the trustee under the Muzak Indenture the purchase price for all Muzak Notes properly tendered pursuant to the Tender Offer. The Supplemental Indenture shall have been executed by Old Muzak and the trustee under the Muzak Indenture and the terms of the Muzak Indenture shall be as modified by such Supplemental Indenture.
(xii) All proceedings taken in connection with the issuance of the Securities hereunder and the transactions contemplated by this Agreement, the other Offering Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. The Initial Purchasers and counsel to the Initial Purchasers 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.
(xiii) The Notes Issuers shall apply the proceeds necessary from the issuance and sale of the Notes and from initial borrowings under the New Credit Agreement and the Equity Contribution as described under "Use of Proceeds" in the Final Memorandum.
(xiv) On the Closing Date, the Initial Purchasers shall have received a letter, dated the Closing Date, from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & Zukin Inc. with respect to the solvency of the Issuers as of the Effective Time in form, scope and substance reasonably satisfactory to the Initial Purchasers.
(xv) Since the date of this Agreement, there shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company or Old Muzak, or (B) it is reviewing its rating assigned to any debt securities of the Company or Muzak with a view to possible downgrading, or with negative implications, or direction not determined.
(xvi) On or before the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be enjoined (temporarily or permanently) on in full force and effect at all times from and after the Closing Date.
(gxvii) Subsequent The Issuers shall have furnished or caused to be furnished to the date of Initial Purchasers such further certificates and documents as the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the Issuers, dated provisions hereof only if they are reasonably satisfactory in all material respects to the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in Initial Purchasers and counsel to the case of any Issuer organized under Initial Purchasers. The Issuers shall furnish to the laws of the Netherlands, in which case, Initial Purchasers such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that: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 Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver and fulfillment of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the The Initial Purchasers Purchaser shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the a signed opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date Purchaser and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial PurchasersPurchaser, with respect dated the Closing Date and addressed to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably requirePurchaser, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. ("Mintz ▇▇▇▇▇"), counsel for the Company, in the form of ----------- Exhibit B hereto. In addition, in rendering their opinion, Mintz, ▇▇▇▇▇ --------- may rely as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Massachusetts or the General Corporation Law of the State of Delaware or federal law, to the extent such counsel deems proper and specifies in such opinion, Milbankupon the opinion of other counsel who are reasonably satisfactory to counsel for the Initial Purchaser; provided, Tweedhowever, that ▇▇▇▇▇ ▇▇▇▇▇ shall state that they, the -------- ------- Initial Purchaser and counsel for the Initial Purchaser are justified in relying on such opinion.
(b) The Initial Purchaser shall have received a signed opinion, in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchaser, dated the Closing Date and addressed to the Initial Purchaser, from a local counsel in each jurisdiction in which Mortgaged Property is located, each substantially in the form of Exhibit C hereto. ---------
(c) The Initial Purchaser shall have received a signed opinion, in form and substance satisfactory to the Initial Purchaser, dated the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchaser, with respect to certain legal matters relating to this Agreement, and such other related matters as the Initial Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received received, and may rely upon upon, such certificates and other documents and information as it they may reasonably request re quest to pass upon such matters.
(d) The Initial Purchasers Purchaser shall have received from the Independent Accountants Accountant a comfort letter or letters dated the date hereof and the Closing Date, addressed to the Initial Purchaser, each in form and substance satisfactory to the Initial Purchaser and Ca ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial PurchasersPurchaser.
(e) The representations and warranties of the Issuers 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; the statements of any Authorized Person 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 Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)the 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 EffectChange.
(f) The sale of the Securities Notes by the Company hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date as of which information is given in the Final Memorandum, except in each case as described in the Final Memorandum, neither the Company nor any of the Subsidiaries shall have incurred any liabilities or obligations, direct or contingent (whether or 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 and the Subsidiaries, taken as a whole, or entered into any transactions whether or 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 and the Subsidiaries, 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 the Subsidiaries that is material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole.
(h) Subsequent to the date as of which information is given in the Final Memorandum, the conduct of the business and operations of each the Company or any of the Issuers shall Subsidiaries has not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, decree and, except as otherwise stated thereinin the Final Memorandum, the properties of each the Company or any of the Issuers shall Subsidiaries have 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, whether individually singly or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(hi) The Initial Purchasers Purchaser shall have received a certificate of the IssuersCompany, dated the Closing DateDate and addressed to the Initial Purchaser, signed on behalf of the Company by its Chairman, President or any 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 in all material respects as if made on and as of the Closing Date, and the Company has performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied in connection with this Agreement at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto since the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, to the best knowledge of such officers after due inquiry would have a material adverse effect on the business, condition (financial or other) or results of operations or prospects of the Company;
(iii) Since the date hereof or since the date of which information is given in the Final Memorandum, neither the Company nor any of the Subsidiaries has incurred any liabilities or obligations direct or contingent (other than in the ordinary course of business) that are material to the Company or any of the Subsidiaries 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 and the 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 the Subsidiaries that is material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries at and as of the Closing Date, taken as a whole, except as described by the Final Memorandum.
(iv) The sale of the Notes by the Company has not been enjoined (temporarily or permanently).
(j) The Initial Purchaser shall have received the Registration Rights Agreement executed by the Company and the Registration Rights Agreement shall be in full force and effect at all times from and after the date hereof.
(k) On the Closing Date, the Company shall have delivered to the Initial Purchaser and to the Trustee the following documents and instruments with regard to the Mortgaged Property:
(i) each Issuer Mortgage encumbering the Company's fee interest in the Mortgaged Property, duly executed and acknowledged by two Authorized Persons the owner or holder of such fee interest and otherwise in form for recording in the appropriate recording office of the political subdivision where such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof and such UCC-1 financing statements and other similar statements as are contemplated in respect of such Mortgage by the local counsel opinion delivered with respect thereto, pursuant to Section 7(b) hereof, and any other instruments necessary to grant the interests purported to be granted by the Mortgage under the laws of any applicable jurisdiction, which Mortgage and financing statements and other instruments shall be effective to create a Lien (as defined in the Indenture) on such Mortgaged Property subject to no Liens other than as set forth in Schedule B to the applicable Mortgage;
(ii) with respect to each Mortgage, a policy of title insurance on ALTA Form B (1990) or equivalent (or a commitment to issue such a policy) insuring (or committing to insure) the Lien of the Mortgage as a valid first mortgage Lien on the Real Property in respect of the Notes in an amount not less than the fair market value of such Real Property which policy (or commitment) shall (A) be issued by Chicago Title Insurance Company or another nationally recognized title insurance company reasonably acceptable to the Initial Purchaser, (B) include such reinsurance arrangements (with provisions for direct access) as shall be reasonably acceptable to the Initial Purchaser, (C) have been supplemented by such endorsements, or, where such endorsements are not available at commercially reasonable premium costs, opinion letters of special counsel, architects or other professionals, which counsel, architects or other professionals shall be reasonably acceptable to the Initial Purchaser, as shall be reasonably requested by the Initial Purchaser (including, without limitation, endorsements or opinion letters on matters relating to usury, last dollar, zoning, non-imputation, public road access, contiguity (where appropriate), except that improvements need not be located thereon, survey, variable rate and so-called comprehensive coverage over covenants and restrictions) and (D) contain only such exceptions to title as shall be reasonably agreed to by the Initial Purchaser prior to the Closing Date with respect to such Mortgaged Property;
(iii) with respect to each Mortgaged Property, a survey complying with the minimum detail requirements of the American Land Title Association (as such requirements are in effect on the date of delivery of such survey), except that improvements need not be located thereon, certified to the Trustee, and dated (or redated) not earlier than six months prior to the date of delivery thereof, unless there shall have occurred any exterior change in the property affected thereby during such period, in which event such survey shall be dated or redated to a date after the completion of such change, which survey shall locate all public streets and certify that none of the recorded easements encroach upon the improvements on such Mortgaged Property;
(iv) with respect to the Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as shall reasonably be deemed necessary by the Initial Purchaser in order for the owner or holder of the fee interest to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(v) with respect to the Mortgaged Property, policies or certificates of insurance as required by the Mortgage relating thereto, which policies or certificates shall bear mortgagee endorsements of the character customarily and reasonably required by the Mortgage;
(vi) with respect to each Mortgaged Property, UCC, judgment and tax lien searches confirming that the personal property comprising a part of such Mortgaged Property is subject to no Liens other than as set forth in Schedule B to the applicable Mortgage;
(vii) checks payable to the appropriate public officials in payment of all recording costs and transfer taxes due in respect of the execution, delivery or recording of each Mortgage, together with a check or wire transfer for the title company in payment of its premium search and examination charges, survey costs and any other amounts due in connection with the issuance of its policies (or commitments);
(viii) with respect to the Mortgaged Property, copies of all Leases and Subleases (as defined in the Mortgages), all of which Leases and Subleases shall, to the extent not previously approved in writing by the Initial Purchaser, be reasonably satisfactory to the Initial Purchaser; and
(ix) with respect to the Mortgaged Property, an Officers' Certificate (as defined in the Indenture) stating that (i) there has been issued and is in effect a valid and proper certificate of occupancy or local equivalent if required by the local codes or ordinances, for the use of such Mortgaged Property and (ii) there is not outstanding any citation, violation or similar notice indicating that such Mortgaged Property contains conditions which are not in compliance with local codes or ordinances relating to building or fire safety or structural soundness.
(l) On the Closing Date, the Company shall have delivered to the Initial Purchaser and to the Trustee the Security Agreement, duly executed by the Company, together with the evidence of the filing of appropriate financing statements in each of the offices where such filing is necessary or, in the opinion of the Initial Purchaser, desirable to perfect the Liens created or intended to be created, by the Security Agreement. All filing fees and taxes in connection with such filings shall have been paid and the Initial Purchaser shall have received evidence satisfactory to it of such filings and payments, including in the case of any Issuer organized under financing statements, the laws acknowledgment copies of all such financing statements bearing evidence of filing in each such office.
(m) On the Closing Date, the Company shall have delivered to the Initial Purchaser, the Intercreditor Agreement among the Company, the Trustee and NationsBank, N.A. duly executed by the Company.
(n) On the Closing Date, the Company shall have delivered or cause to be delivered to the Initial Purchaser such documentation and instruments as may be necessary or required to effectuate the termination of the NetherlandsLien of the Revolver Lender on the Pledged Collateral and Mortgaged Property, including, without limitation, mortgage releases, UCC financing statements and amendments to the existing Revolving Credit Facility. On or before the Closing Date, the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchaser, shall have received such further documents, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company as they shall reasonably request from the Company. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Section 7 will comply with the provisions hereof only if they are reasonably satisfactory in all respects to the Initial Purchaser. The Company shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments and such other documents, in which case, such certificate quantities as the Initial Purchaser shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that: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 Securities shall, in their sole discretion, be Purchaser hereunder are subject to the satisfaction or waiver accuracy of the following conditions representations and warranties on or prior the part of the Company on the date hereof and at the time of purchase, and to the Closing Dateperformance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) On The Company shall furnish to you at the Closing Date, the Initial Purchasers shall have received opinions, dated as time of the Closing Date and addressed to the Initial Purchasers, purchase an opinion of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); StroeterLLP, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), Canadian counsel for the Issuer and/or Company (who may provide opinions of local counsel acceptable to them and to the GuarantorsInitial Purchaser’s counsel as to matters governed by the laws of jurisdictions in Canada other than the Provinces of British Columbia, as Alberta, Ontario and Quebec), addressed to the case may beInitial Purchaser, in each case, and dated the time of purchase in form and substance satisfactory to the Initial Purchasers Purchaser, to the effect set forth in their reasonable discretionExhibit B hereto.
(b) On The Company shall furnish to you at the Closing Date, the Initial Purchasers shall have received time of purchase an opinion, dated as opinion of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the IssuersWeiss, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing DateRifkind, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the Initial PurchasersCompany, 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 such opinionPurchaser, Milbankand dated the time of purchase in form and substance satisfactory to the Initial Purchaser, Tweedto the effect set forth in Exhibit C hereto.
(c) The Company shall furnish to you at the time of purchase an opinion of (i) REM Law Consultancy, Ghanaian counsel for the Company, in respect of the Material Subsidiaries organized under the laws of Ghana and (ii) Ogiers, Cayman Islands counsel for the Company, in respect of the Material Subsidiaries organized under the laws of the Cayman Islands, in each case addressed to the Initial Purchaser, and dated the time of purchase, in form and substance satisfactory to the Initial Purchaser.
(d) You shall have received from PricewaterhouseCoopers LLP letters dated, respectively, the date of this Agreement, the date of the time of purchase and addressed to the Initial Purchaser (with executed copies for the Initial Purchaser) in the forms satisfactory to the Initial Purchaser, which letters shall cover, without limitation, the various financial disclosures contained in the Pricing Disclosure Package and the Final Memorandum.
(e) You shall have received at the time of purchase the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Whitney LLP, U.S. counsel for the Initial Purchaser, dated the time of purchase in form and substance reasonably satisfactory to the Initial Purchaser.
(f) You shall have received at the time of purchase the favorable opinion of Stikeman Elliott LLP, Canadian counsel for the Initial Purchaser, dated the time of purchase, in form and may rely upon such certificates and other documents and information as it may substance reasonably request satisfactory to pass upon such mattersthe Initial Purchaser.
(dg) At the Applicable Time and the time of purchase, neither the Pricing Disclosure Package, the Final Memorandum, nor any amendment or supplement thereto shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(h) The Initial Purchasers Company will, at the time of purchase, deliver to you a certificate of its Chief Executive Officer or its Chief Financial Officer, dated the time of purchase, in the form attached as Exhibit D hereto.
(i) You shall have received from lock-up agreements with the Independent Accountants a comfort letter or letters dated directors and officers of the date hereof and the Closing Date, Company in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, acting reasonably.
(ej) The representations Company shall have furnished to you such other opinions, documents and warranties of the Issuers contained in this Agreement shall be true and correct on and certificates as of the date hereof and on and time of purchase as you may reasonably request.
(k) The Notes shall be included in the book-entry settlement system of the Closing Date as if made on and as DTC, subject only to notice of the Closing Date; the statements of any Authorized Person 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 shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder issuance at or prior to the Closing Date; and, except as described in the Memorandum time of purchase.
(exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), there l) The Shares shall have been approved for listing on the NYSE MKT, subject only to official notice of issuance, and conditionally approved for listing on the TSX.
(m) There shall exist no event or development, and no information shall have become known, that, individually condition which would constitute a default or in an event of default under the aggregate, has Notes or would be reasonably likely to have a Material Adverse Effectthe Indenture.
(fn) The Exchange shall be consummated substantially concurrently with the consummation of the offering and sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing DateNotes.
(go) Subsequent to The Equity Offering shall be consummated substantially concurrently with the date consummation of the Memorandum, the conduct offering and sale of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse EffectNotes.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, Bonds shall be subject to the satisfaction or waiver accuracy on the date hereof and on the Closing Date of the following conditions representations and warranties made herein on or prior the part of the Company and of any certificates furnished by the Company on the Closing Date and to the Closing Datefollowing conditions:
(a) On At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have received opinionsfrom Mark G. Otts, dated as of the Closing Date and addressed to the Initial PurchasersEsq., of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇Senior Counsel- Corporat▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇rities of Entergy Services, Inc., and Thelen Reid & Priest LLP opinions, dated the Closin▇ ▇▇▇▇, substantially in the forms set forth in Exhibits A and B hereto, respectively (it being understood that Mr. Otts may rely on an opinion of Orgain, Be▇▇ (Maltese law); Stroeter& ▇▇▇ker, L.L.P. as to matters ▇▇ ▇▇▇ o▇▇▇▇on ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian lawng to Texas law provided that the Initial Purchasers are addressees to, or are otherwise entitled to rely on, such opinion), counsel (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Issuer and/or Initial Purchasers, and (ii) if the Guarantors, as the case may be, in each case, in form and substance satisfactory Offering Memorandum shall be supplemented after being furnished to the Initial Purchasers for use in their reasonable discretionoffering the Bonds, with changes therein to reflect such supplementation.
(bc) On At the Closing Date, the Initial Purchasers shall have received from Counsel for the Initial Purchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of the Closing Date and addressed Offering Memorandum prior to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretionClosing Date.
(cd) On At the Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP, the opinionCompany's independent certified public accountants (the "Accountants"), in form and substance satisfactory to the Initial Purchasers, a letter dated as of the Closing Date and addressed to the Initial PurchasersPurchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants' (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and incorporated by reference in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of Milbankthe Exchange Act and the applicable published rules and regulations thereunder; (iii) on the basis of performing the procedures specified by the AICPA for a review of interim financial information as described in SAS No. 71, TweedInterim Financial Information, ▇▇▇▇▇▇ & ▇▇▇▇▇▇on the latest unaudited financial statements, counsel if any, incorporated by reference in the Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2001 to a specified date not more than five days prior to the date of such letter, and inquiries of officers 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 they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; and (C) at a specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholders' equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and
(iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, 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 opinionresults obtained from the application of specified readings, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates inquiries and other documents appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and information as it may reasonably request found them to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, be in form and substance satisfactory to counsel for the Initial Purchasersagreement.
(e) The representations and warranties of the Issuers contained in this Agreement 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 At the Closing Date; the statements of any Authorized Person 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 shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Company, to the effect that:that (i) the representations and warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Purchase Agreement to be performed or complied with by the Company at or prior to the Closing Date and (iii) since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in each case other than as referred to in, or contemplated by, the Offering Memorandum, as it may then be amended or supplemented.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On The Initial Purchaser shall have received an opinion in form and substance satisfactory to the Initial Purchaser, dated the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, substantially in the form of Exhibit A hereto. In rendering such opinion, ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter& ▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass on such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian ▇▇▇▇▇ may state that their opinion is limited to matters of Illinois, New York, Delaware corporate and federal law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory . Such opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall be rendered to the Initial Purchasers in their reasonable discretionPurchaser at the request of the Company and shall so state therein.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial PurchasersPurchaser, 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, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser.
(ed) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent Other than as disclosed in the Final Memorandum, subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers Purchaser shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Executive Vice President and the managing director of such Issuer)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 part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(h) The New Credit Facility (as defined in the Offering Memorandum) shall have been executed and delivered by the parties thereto, shall be in full force and effect and in form and substance satisfactory to the Initial Purchaser.
(i) On the Closing Date, the Initial 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. On or before the Closing Date, the Initial Purchaser and counsel for the Initial Purchaser shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 Purchaser and counsel for the Initial Purchaser. The Company shall furnish to the Initial Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchaser 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 Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of (i) the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Locke Liddell & Sapp LLP, counsel for the Company, in form and ▇▇▇▇t▇▇▇▇ rea▇▇▇▇bly satisfactory to counsel for the Initial Purchasers, to the effect set forth in Exhibit A, (ii) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Meilicke Hoffman & Partner, German counsel to the Company, in for▇ ▇▇▇ ▇▇▇▇▇ance reasonably satisfactory to counsel for the Initial Purchasers, to the effect set forth in Exhibit B, (iii) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Bech-Bruun Dragsted Law Firm, Danish counsel to the Company, ▇▇ ▇▇▇▇ ▇nd substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit B, (iv) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Narbarro Nathanson, United Kingdom counsel to the Company, i▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇nce reasonably satisfactory to the Initial Purchasers, in-house legal to the effect set forth in Exhibit B, and (v) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of MB et Associes, French counsel for to the IssuersCompany, in form and substance reasonably satisfactory to the Initial Purchasers Purchasers, to the effect set forth in their reasonable discretion.Exhibit B.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇Reindel, counsel for the Initial Purchasers, with respect to certain re▇▇▇▇▇ ▇o c▇▇▇▇▇▇ legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇ Reindel shall have received and may rely upon such certificates and ▇▇▇▇ ▇▇▇▇▇▇▇cat▇▇ ▇▇▇ other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person the Company's officers made pursuant to in any certificate signed by them delivered on or as of the Closing Date 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 Company shall have performed in all material respects all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, organized labor dispute, labor slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer or any President or Vice President and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)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 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;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(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 the Closing Date.
(i) On the Closing Date, the Initial Purchasers shall have received the Escrow and Pledge Agreement and the Securities Account Control Agreement, each dated the Closing Date, executed by the Company, NL Industries, Inc., the trustee identified therein and the securities intermediary identified therein.
(j) On or before the Closing Date, the Company shall have caused to be delivered the following documents and instruments with regard to the Collateral:
(i) to the Trustee (with a copy to the Initial Purchasers), the Security Agreements and other Security Documents, duly executed by the Company, together with certificates, if any, representing 65% of the issued and outstanding capital stock or other equity interests of the first-tier Subsidiaries required to be pledged to the Trustee and evidence of all registrations or filings in each of the offices where such registrations or filings are necessary or, in the opinion of the Initial Purchasers, desirable to perfect the Liens created or intended to be created thereby;
(ii) to the Initial Purchasers and the Trustee, evidence satisfactory to them of the payment of all filing fees and taxes in connection with the filings and registrations contemplated in clause (i) above and acknowledgment copies of all such filings; and
(iii) to the Initial Purchasers and the Trustee, evidence as may be reasonably requested that all other actions necessary to perfect and, subject to Liens expressly permitted to exist by the terms of the applicable Security Document, protect the Liens created or intended to be created by the Security Documents have been taken.
(k) The new credit facility (the "New Credit Facility") among Kronos Titan GmbH & Co. OHG, Kronos Europe S.A./N.V., Kronos Titan A/S and Titania A/S (and other subsidiaries of the Company) and the lenders party thereto shall be in full force and effect; all conditions to making the initial loans thereunder shall have been satisfied and the borrowers thereunder shall be in compliance with all the terms thereof. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received from the Company such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Notes and the Guarantees. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be Notes and the Guarantees are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchaser pursuant to this Section 8 of any misstatement or omission and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(ai) 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 opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, & ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers Company covering the matters in their reasonable discretionsubstantially the form set forth on Exhibit B hereto.
(bii) On the Closing Date, the The Initial Purchasers Purchaser shall have received an opinion, dated as opinion of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(diii) The Initial Purchasers Purchaser shall have received from Deloitte & Touche LLP, independent public accountants for the Independent Accountants a comfort letter or letters dated Company and Picochip, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser and counsel to the Initial Purchaser, letters dated the date hereof and the Closing Date confirming that is an independent public accountant 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 financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering Memorandum.
(eiv) The Initial Purchaser shall have received from each of the officers and directors listed on Schedule IV hereto an executed Lock-Up Agreement in substantially the form of Exhibit C hereto.
(v) The representations and warranties of the Issuers Company and each of the Guarantors contained in this Agreement 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 any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true Company and correct on and as each of the date made and on and as of the Closing Date; the Issuers Guarantors shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or any of the Guarantors or against the Initial 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, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent 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 or Guarantor, not disclosed in the Disclosure Package and the Offering Memorandum that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any Subsidiary or Guarantor, or any of their respective officers or directors that makes any material statement 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 Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. The representations and warranties of the Company and each of the Guarantors contained in this Agreement are true and correct in all material respects as if made on and as of the Closing Date (other than representations and warranties qualified by materiality, in which case such representations shall be true and correct in all respects) and, as of the Closing Date the Company and each of the Guarantors shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
b. None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents have been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued; and there has not been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or any of the Guarantors or against the Initial 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, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Disclosure Package and the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not 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 or Guarantor, not disclosed in the Disclosure Package and the Offering Memorandum that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any Subsidiary or Guarantor, or any of their respective officers or directors that makes any material statement 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 Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fx) The sale All proceedings taken in connection with the issuance of the Securities hereunder Notes and the Guarantees and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchaser and counsel to the Initial Purchaser.
(gxi) Subsequent to Since the date of the Memorandumthis Agreement, the conduct of the business and operations of each of the Issuers there shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company or governmental actionany of the Guarantors, order or decree(B) it is reviewing its rating assigned to any debt securities of the Company or any of the Guarantors with a view to possible downgrading, andor with negative implications, except as otherwise stated therein, the properties of or direction not determined.
(xii) The Company and each of the Issuers Guarantors shall not have sustained any loss furnished or damage (whether or not insured) caused to be furnished to the Initial Purchaser such further certificates and documents as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, Initial Purchaser shall have or be reasonably likely to have a Material Adverse Effectrequested.
(hxiii) The Initial Purchasers shall have received a certificate of the Issuers, dated At the Closing Date, signed on behalf of the Company and each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the NetherlandsGuarantors and the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, conformed as executed, thereof and the Notes and the Guarantees shall have been duly executed and delivered by the Company and each of the Guarantors and duly authenticated by the Trustee. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in which case, all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Company and each of the Guarantors shall furnish to the Initial Purchaser such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser 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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeteri) Powell, ▇Goldstein, ▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)▇▇▇▇▇▇ LLP, counsel for the Issuer and/or Company and certain of the Subsidiary Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to counsel for the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal as set forth in Exhibit B-1 and Exhibit B-2 hereto and (ii) local counsel for certain of the IssuersSubsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, as set forth in their reasonable discretionExhibit C hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 counsel may also state that, insofar as such opinionopinion involves factual matters, Milbankthey have relied, Tweedto the extent they deem proper, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have received and may rely upon such certificates and other documents and information as it may reasonably request been provided to pass upon such mattersthe Initial Purchasers.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement 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 any Authorized Person the Company’s and the Subsidiary Guarantors’ 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 Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)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.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate certificates of the IssuersCompany and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of each Issuer the Company or the applicable Subsidiary Guarantor by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company or the applicable Subsidiary Guarantor 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 or the applicable Subsidiary Guarantor 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or such Subsidiary Guarantor, 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).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Subsidiary Guarantors and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect.
(j) On the Closing Date, the Company and the Subsidiary Guarantors shall have delivered to the Initial Purchasers a fully executed copy of the Senior Credit Agreement, in form and substance satisfactory to counsel for the Initial Purchasers, and such agreement shall be in full force and effect.
(k) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(l) The Securities shall be designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company and the Subsidiary Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Notes and the Additional Closing Date, if any, for the Optional Notes. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be Notes are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchaser pursuant to this Section 7 of any material misstatement and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(ai) On The Initial Purchaser shall have received an opinion of counsel in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇ Day, counsel to the Company, substantially in the form of Exhibit B hereto.
(ii) The Initial Purchasers Purchaser shall have received opinions, dated as the opinions of the Closing Date counsel in form and addressed substance satisfactory to the Initial PurchasersPurchaser and counsel to the Initial Purchaser, each dated the Closing Date, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇, General Counsel of the Company, substantially in the form of Exhibit C hereto, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇, PC, Indiana counsel to the Company, substantially in the form of Exhibit D hereto.
(Maltese law); Stroeteriii) The Initial Purchaser shall have received an opinion and a letter, each dated the Closing Date, of ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for to the Initial PurchasersPurchaser, 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, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(div) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP, independent auditors for the Independent Accountants Company, a comfort “comfort” letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser.
(ev) The Prior to the date hereof, the Initial Purchaser shall have received from each of the officers and directors listed on Schedule 1 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit E hereto.
(vi) All of the representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Company shall have complied with or performed in all covenants and material respects all agreements or obligations and satisfied all conditions in each case on their its part to be complied with, performed or satisfied hereunder at or prior to the Closing Date.
(vii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued relating thereto; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or threatened against the Company or against the Initial 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.
(viii) 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), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and its Subsidiaries, taken as a whole, not contemplated by the Offering Memorandum (which for all purposes of this clause (i) and clause (ii) below shall be exclusive of any amendment or supplement thereto, including by the filing of any document under the Exchange Act, after the date hereof which the Initial Purchaser has reasonably disapproved) that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities 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 of the Subsidiaries, or any of their respective officers or directors, that makes any statement made in the Offering Memorandum untrue in any material respect 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 required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading in the light of the circumstances under which they were made.
(ix) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. 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, as of the Closing Date, all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior to the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Notes pursuant to this Agreement or 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 issuance of 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.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and its Subsidiaries, taken as a whole, not contemplated by the Offering Memorandum (which for all purposes of this clause (i) and clause (ii) below shall be exclusive of any amendment or supplement thereto, including by the filing of any document under the Exchange Act, after the date hereof which the Initial Purchaser has reasonably disapproved) or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors, that makes any statement of a material fact made in the Offering Memorandum untrue or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Documents, there exists no Default or Event of Default (as each such term is defined in the Indenture).
(x) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or developmentwaivers of any provision of this Agreement since the date of this Agreement (or, and no information shall have become known, that, individually or in the aggregatecase of the Indenture, has the Notes or would be reasonably likely to have a Material Adverse Effectthe Registration Rights Agreement, the date thereof).
(fxi) The sale All proceedings taken in connection with the issuance of the Securities hereunder Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial 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.
(gxii) Subsequent to The Notes shall have been approved for trading on The PORTAL Market.
(xiii) Since the date of the Memorandumthis Agreement, the conduct of the business and operations of each of the Issuers there shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action“nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers Company or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, with negative implications or direction not determined.
(xiv) Since the date of this Agreement, there shall not have sustained occurred any loss or damage event described in clauses (whether or not insuredi) as a result through (v) of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse EffectSection 12.
(hxv) The Initial Purchasers shall have received a certificate of the Issuers, dated At the Closing Date, signed on behalf of each Issuer the Company and the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by two Authorized Persons the Company and duly authenticated by the Trustee.
(except xvi) The Company shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents 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 case of any Issuer organized under Initial Purchaser and counsel to the laws of Initial Purchaser. The Company shall furnish to the Netherlands, in which case, Initial Purchaser such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (CTS Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsfrom the Great Wolf Parties the Joinder Agreement, dated as of the Closing Date and addressed to the Initial Purchasers, of executed by each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each caseGreat Wolf Parties, in form and substance satisfactory to the Initial Purchasers and in their reasonable discretion.the form substantially set forth in Exhibit A.
(b) On the Closing Date, the Initial Purchasers shall have received an from ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Issuers, (x) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in the form set forth in Exhibit B and (y) a disclosure letter, dated as of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the IssuersClosing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in their reasonable discretionthe form set forth in Exhibit C.
(c) On the Closing Date, the Initial Purchasers shall have received from ▇▇▇▇▇ & ▇▇▇▇▇ Co., L.P.A., Ohio counsel to the Issuers, the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in the form set forth in Exhibit D.
(d) On the Closing Date, the Initial Purchasers shall have received from ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, Texas counsel to the Issuers, the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers.
(ce) On the Closing Date, the Initial Purchasers shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., Virginia counsel to the Issuers, the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in the form set forth in Exhibit E.
(f) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Purchase Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dg) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information contained in or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information contained in or incorporated by reference in the Final Memorandum.
(eh) The representations and warranties of the Issuers Great Wolf Parties contained in this Purchase Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person Great Wolf Party’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 Issuers Great Wolf Parties shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has had or would be reasonably likely to have a Material Adverse Effect.
(fi) The sale of the Securities hereunder shall have not be been enjoined (temporarily or permanently) on the Closing Date.
(gj) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct of the no Great Wolf Group Member shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have had or would be reasonably likely to have a Material Adverse Effect.
(hk) The Initial Purchasers shall have received a certificate of the Issuerseach Great Wolf Party, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except Great Wolf Party by, in the case of any Issuer organized under the laws GWR, its Chairman of the NetherlandsBoard, President or any Senior Vice President and the Chief Financial Officer, or in which case, such certificate shall be signed the case of each other Great Wolf Party by one Authorized Person who shall be the managing director an authorized officer of such Issuer)Great Wolf Party or its general partner or sole member as applicable, to the effect that:
(i) the representations and warranties of such Great Wolf Party contained in this Purchase Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and such Great Wolf Party 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto 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).
(l) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Great Wolf Parties and such agreement shall be in full force and effect at all times from and after the Closing Date.
(m) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Great Wolf Parties and such agreement shall be in full force and effect at all times from and after the Closing Date.
(n) On the Closing Date, the Initial Purchasers shall have received (i) the Security Documents and each other document or instrument required to cause the Guarantees by the Grantors to be secured by first priority liens and security interests on the Collateral to the extent and in the manner provided for in the Indenture and the Security Documents and as described in the Pricing Disclosure Package, in each case executed by the parties thereto, (ii) evidence that all of the liens on the Collateral other than those liens permitted by the Indenture and the applicable Security Documents have been released (which with respect to any mortgages currently encumbering any of the Collateral, shall be deemed satisfied so long as the title insurer is irrevocably committed to issue lender’s title insurance policies insuring that the holders of the Securities have a first priority lien on the real estate Collateral (subject to permitted liens as described in the Indenture and Security Documents)), and (iii) all documents necessary to establish that the Collateral Agent for the benefit of the holders of the Securities will have a perfected first priority security interest or lien on the Collateral (subject to permitted liens as described in the Indenture and Security Documents), as contemplated herein and in the Final Memorandum, shall have been delivered to the Collateral Agent.
(o) On the Closing Date, the Initial Purchasers shall have received the Securities executed by the Great Wolf Parties and the Guarantees executed by the Guarantors, and the Securities and the Guarantees shall be in full force and effect at all times from and after the Closing Date. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Great Wolf Group Members as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Purchase Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments 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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each caseopinion, in form and substance satisfactory to counsel for the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinionPurchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, in-house legal counsel for the IssuersCompany, substantially in the form of Exhibit A hereto. In rendering such opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall have received and substance satisfactory may rely upon such certificates and other documents and information as it may reasonably request to the Initial Purchasers in their reasonable discretionpass on such matters.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent Other than as disclosed in the Final Memorandum, subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of each of the IssuersCompany and the Guarantors, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the NetherlandsCompany and the Guarantors by its Chairman of the Board, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuers 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 part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum, except as disclosed in the Final Memorandum (exclusive of any amendment or supplement thereto 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).
(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 the Closing Date.
(i) The Company shall have entered into the new senior secured revolving credit facility, dated as of the Closing Date, on the terms described in the Final Memorandum, by and among the Company, Deutsche Bank Trust Company Americas and the other lenders listed therein (the "Credit Facility"), which Credit Facility 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 and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments 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 Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Paul, ▇▇iss, Rifkind, Whar▇▇▇ & ▇▇▇ ▇arr▇▇▇▇, in-house legal ▇▇ecial outside counsel for SDI Acquisition and, at and as of the IssuersEffective Time, the Company and the Guarantor, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, substantially in their reasonable discretion.the form attached hereto as Exhibit C.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Cahi▇▇ ▇▇▇▇▇▇ & ▇▇▇ein▇▇▇, counsel ▇▇unsel for 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 opinion, Milbank, Tweed, Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇ ▇▇▇▇▇ 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.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers SDI Acquisition contained in this Agreement 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 any Authorized Person officers of SDI Acquisition, the Company and the Guarantor 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; SDI Acquisition, the Issuers Company and the Guarantor shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has had or would be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each of Company or the Issuers Subsidiary shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:interference with
Appears in 1 contract
Sources: Purchase Agreement (Scot Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date opinion and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasersnegative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ 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.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇ ▇▇▇▇ LLP, regulatory counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Representative, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(d) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package and other customary matters. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum and other customary matters.
(e) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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 Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(f) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) by a court of competent jurisdiction on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Executive Vice President or the managing director of such Issuer)Chief Financial Officer or Chief Legal 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 Time of Execution and 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 hereunder at or prior to the Closing Date;
(ii) since 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 Notes hereunder has not been enjoined (temporarily or permanently) by a court of competent jurisdiction.
(h) On the Closing Date, the Issuer shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments 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 Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal ▇▇▇▇▇▇ & ▇▇▇▇, special counsel for the IssuersCompany, substantially in the form set forth on Exhibit B hereto, with such changes thereto as are acceptable to counsel for the Initial Purchasers.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and substance satisfactory addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, substantially in the form set forth on Exhibit C hereto, with such changes thereto as are acceptable to counsel for the Initial Purchasers. In addition, the Initial Purchasers shall have received a letter or letters permitting it to rely on any opinions rendered by counsel to MergerCo, the Company and Globe Holdings in their reasonable discretionconnection with the Transactions.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers Company contained in this Agreement 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 any Authorized Person 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 Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)Final Memorandum, there shall have been no event or development, and no information shall have become known, development that, individually or in the aggregate, has or would reasonably be reasonably likely expected to have a Material Adverse Effect.
(f) The Neither the sale of the Securities Notes hereunder nor any of the Related Transactions shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandummost 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 each of the Issuers Company or the Subsidiary shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers Company or the Subsidiary 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 notwhich, whether individually or in the aggregate, have or would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, President or any Vice President and the Chief Financial Officer (in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuertheir respective capacities as such), to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct as of the date hereof 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 hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;
(iii) Neither the sale of the Notes nor any of the Related Transactions hereunder has been enjoined (temporarily or permanently); and
(iv) The Related Transactions have been consummated or are being consummated on the Closing Date concurrently with the closing hereunder. As used herein, "Related Transactions" means (i) the Recapitalization of Globe Holdings (as defined in the Final Memorandum) pursuant to the Merger Agreement (as defined below), (ii) the Merger (as defined in the Final Memorandum), (iii) the Asset Drop Down (as defined in the Final Memorandum), (iv) the entry by the Company into the Senior Credit Facility and the initial borrowing by the Company of approximately $120 million thereunder, (v) the repayment of all outstanding obligations under the Old Credit Facility (as defined in the Final Memorandum) and the release of all liens on property of the Company granted in connection therewith and (vi) the other transactions contemplated by the Merger Agreement. As used herein, the Merger Agreement means the Agreement and Plan of Merger dated June 23, 1998, by and among Globe Holdings and Globe Acquisition Company, a newly formed affiliate of Code ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ III, L.P., as amended through the date hereof.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be are subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date and addressed counsel to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, Issuers in form and substance satisfactory to the Initial Purchasers and Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇, ▇▇unsel to the Initial Purchasers, dated the 18 -18- Closing Date, of Powell, Goldstein, Fraz▇▇ & ▇urp▇▇ ▇▇▇, substantially in their reasonable discretionthe form of Exhibit D hereto. In rendering such opinion, Powell, Goldstein, Fraz▇▇ & ▇urp▇▇ ▇▇▇ shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchasers and Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇, ▇▇unsel to the Initial Purchasers, as they may reasonably request to pass upon such matters.
(bii) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Cahi▇▇ ▇▇▇▇▇▇ & ▇▇▇ein▇▇▇, counsel for ▇▇unsel to the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇ ▇▇▇▇▇ shall ll have received and may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering its opinion, Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇ ▇▇▇ state that its opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers shall have received from Deloitte & Touche LLP, independent public accountants for the Independent Accountants a comfort letter or Issuers, and from Coopers & Lybr▇▇▇ ▇.▇.P., independent public accountants for National Advertising Company, "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers and Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇, ▇▇unsel to the Initial Purchasers.
(eiv) The representations and warranties of the Issuers contained in this Agreement 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 any Authorized Person 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 shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(v) There shall not have been any change in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date capital stock of the most recent financial statements Issuers nor any material increase in such the consolidated short-term or long-term debt of the Issuers from that set forth or contemplated in the Final Memorandum and (b) the Issuers shall not have any liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), there shall have been no event or developmentthat are material to the Issuers, and no information shall have become knowntaken as a whole, that, individually or other than those reflected in the aggregate, has or would be reasonably likely to have a Material Adverse EffectFinal Memorandum.
(fvi) The None of the issuance and sale of the Securities hereunder pursuant to this Agreement or the Final Memorandum shall not be enjoined (temporarily or permanently) on and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Closing DateIssuers or the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum.
(gvii) 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 Memorandumcondition (financial or other), the conduct business, properties, prospects or results of operations of the business Company and operations the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of each the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers shall not have been interfered with by strikeand their counsel or the Initial Purchasers and their counsel, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident requires the making of any addition to or other calamity (whether or not insured) or change in the Final Memorandum in order to state a material fact required by any court applicable law, rule or governmental action, regulation to be stated therein or necessary in order or decree, and, except as otherwise stated therein, to make the properties of each of the Issuers shall statements made therein 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectmisleading.
(hviii) The Initial Purchasers shall have received a certificate of the Issuerscertificates, dated the Closing Date, and signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under chief executive officer and the laws chief financial officer of the Netherlands, in which case, Company and each Subsidiary Guarantor (or such certificate shall be signed by one Authorized Person who shall be other officers as are acceptable to the managing director of such IssuerInitial Purchasers), to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. None of the issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum have 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 threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum.
c. Subsequent to the effective date of this Agreement, there has not occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (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 Final Memorandum.
(ix) The Issuers shall have furnished or caused to be furnished to the Initial Purchasers such further 21 -21- certificates and documents as the Initial Purchasers shall have reasonably requested. Any certificate or document signed by any officer of an Issuer and delivered to the Initial Purchasers or to counsel for the Initial Purchasers shall be deemed a representation and warranty by such Issuer to the Initial Purchasers as to the statements made therein. All such opinions, certificates, letters, schedules, documents 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 and counsel to the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments 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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as (at the request of the Closing Date and addressed to Issuer) the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of (i) K&L Gates LLP, counsel for the Issuer and the Guarantors attached hereto as Exhibit A-1, and (ii) ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, in-house legal P.C., Nevada counsel for certain of the IssuersGuarantors, attached hereto as Exhibit A-2, in each case with respect to certain legal matters relating to this Agreement and certain other related matters in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers. In rendering such opinions, K&L Gates LLP and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, P.C. shall have received and may rely upon such certificates and other documents and information as each may reasonably request to pass upon such matters.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received (i) from the Independent Accountants E&Y a comfort letter or letters dated the date hereof hereof, addressed to the Initial Purchasers in form and substance satisfactory to counsel for the Initial Purchasers and (ii) from KPMG a comfort letter dated the date hereof, addressed to the Initial Purchasers in form and substance satisfactory to counsel for the Initial Purchasers. On the Closing Date, the Initial Purchasers shall have received (i) from E&Y a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the financial information in the Final Memorandum and (ii) from KPMG a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the financial information in the Final Memorandum.
(d) [Reserved].
(e) The representations and warranties of the Issuers Issuer and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Issuer’s and the Guarantors’ 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 Issuer and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandummost recent audited financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of Parent or any of the Subsidiaries shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersIssuer, dated the Closing Date, signed on behalf of each the Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which caseChief Executive Officer, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Issuer and the Guarantors contained in this Agreement are true and correct at and as of the Time of Execution and on and as of the Closing Date, and the Issuer and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto 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).
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Issuer and the Guarantors and such agreements shall be in full force and effect at all times from and after the Closing Date.
(j) Prior to or concurrently with the issuance of the Securities on the Closing Date, (x) the early settlement under the Tender Offer and Consent Solicitation shall have occurred as described in the Pricing Disclosure Package, the Final Memorandum and the Offer to Purchase and (y) with respect to any Existing Notes that remain outstanding and are not repurchased in connection with the Tender Offer and Consent Solicitation as of the Closing Date, the Issuer shall have delivered to the trustee for the Existing Notes an irrevocable notice of redemption in accordance with the provisions of the Existing Notes Indenture (a copy of which shall have been delivered to the Initial Purchasers) (the “Redemption”).
(k) The Initial Purchasers shall have received a certificate of Parent’s Chief Financial Officer or similar officer relating to certain financial information included in the Pricing Disclosure Package and the Final Memorandum substantially in the form attached hereto as Exhibit B delivered on, and dated and as of, each of the date hereof and the Closing Date. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of Parent and the Subsidiaries as they shall have heretofore reasonably requested from the Issuer. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Issuer or any Guarantor, as applicable, shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments 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 Securities shall, in their sole discretion, hereunder shall be subject to the satisfaction or waiver continuing accuracy of the following conditions representations and warranties of the Company 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 prior each Option Closing Date, as the 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 obligations hereunder and to the Closing Datefollowing further conditions:
(a) The Initial Purchasers shall not have advised the Company that the Offering Memorandum, or any supplement or amendment thereto, 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, in 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.
(b) On or prior to the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇from Kell▇▇ ▇▇▇▇ & ▇arr▇▇ ▇▇▇h opinion or opinions with respect to the organization of the Company, the validity of the Preferred Stock, the Notes, the Conversion Shares, the Offering Memorandum and other related matters as the Initial Purchasers may request and Kell▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇arr▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form ll have received such papers and substance satisfactory information as they request to the Initial Purchasers in their reasonable discretionenable it to pass upon such matters.
(c) On the At Closing Date, the Initial Purchasers shall have received the opinionfavorable opinion of Rubi▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇stant & Frie▇▇▇▇, ▇▇unsel to the Company, dated the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date Purchasers and addressed to the Initial Purchasers, of Milbank, Tweed, Kell▇▇▇ ▇▇▇▇ & ▇▇▇▇arr▇▇, counsel ▇▇ the effect that:
(A) the Company and each of the Subsidiaries has been duly organized and the Company and each of the Subsidiaries is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, (B) the Company and each of the Significant Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction identified in a schedule to such opinion and (C) the Company and each of the Subsidiaries has all requisite power and authority to own or lease its properties and conduct its business as described in the Offering Memorandum;
ii) the Company's authorized capital stock is as set forth under the heading "Capitalization" in the Offering Memorandum, subject to such adjustments therein as are expressly contemplated by the Offering Memorandum; all of the outstanding shares of capital stock of each of the Subsidiaries are owned by the Company, directly or through one or more Subsidiaries, in each case free and clear of any liens, charges, claims, pledges, security interests or encumbrances of any kind whatsoever other than as disclosed in the Offering Memorandum; ## CT01/SCHIJ/68169.34 13 14 iii) except as disclosed in the Offering Memorandum, to the best of such counsel's knowledge, neither the Company nor any of the Subsidiaries is a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities of the Initial PurchasersCompany or any of the Subsidiaries, with respect to certain legal matters relating to except for this Agreement and as described in the Offering Memorandum; the Certificate of Designations, the Indenture, the Securities and all other securities issued or issuable by each of the Company or any of the Subsidiaries which are described in the Offering Memorandum conform, or when issued and paid for, will conform in all material respects to the descriptions thereof contained in the Offering Memorandum; all issued and outstanding capital stock of the Company or any of the Subsidiaries has been duly authorized and validly issued and is fully paid and non-assessable; to the best of such other related matters as counsel's knowledge, none of such securities were issued in violation of the preemptive rights of any securityholder of the Company or any of the Subsidiaries or similar contractual rights granted by the Company or any of the Subsidiaries or applicable securities laws; the Preferred Stock has been duly authorized and, when paid for by the Initial Purchasers may reasonably require. In rendering such opinionin the manner contemplated by this Agreement, Milbankwill be validly issued, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received fully paid and may rely nonassessable; the Notes issuable upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties exchange of the Issuers contained in this Agreement 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 any Authorized Person made pursuant to any certificate delivered Preferred Stock in accordance with the provisions hereof shall Certificate of Designations have been duly authorized and, when executed and authenticated in the manner contemplated by the Indenture, will be true valid and correct on and as binding obligations of the date made and on and as Company entitled to the benefits of the Closing DateIndenture and enforceable against the Company in accordance with their terms, except to the extent that enforceability thereof may be limited by (1) bankruptcy, insolvency, reorganization, 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 Issuers shall shares of Common Stock issuable upon conversion of the Preferred Stock or the Notes have performed been duly authorized and reserved for issuance upon conversion and, when issued, delivered and paid for in accordance with the terms of the Indenture, will be validly issued, fully paid and nonassessable; and the holders of outstanding securities of the Company are not entitled to any preemptive rights with respect to the Securities; all covenants and agreements and satisfied all conditions on their part corporate action required to be performed or satisfied hereunder at or prior to taken for the Closing Date; andauthorization, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), there shall have been no event or development, issue 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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on has been duly and validly taken; and the Closing Date.
(g) Subsequent certificates representing the Securities are in due and proper form; upon the issuance and delivery pursuant to the date this Agreement of the MemorandumPreferred Stock to be sold by the Company hereunder, the conduct Initial Purchasers will acquire good and marketable title thereto free and clear of the business and operations of each of the Issuers shall not have been interfered with by strikeany pledge, labor disputelien, slowdowncharge, work stoppageclaim, fireencumbrance, floodpledge, hurricane, accident security interest or other calamity (whether restriction or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result equity of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:kind whatsoever;
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, in-house legal counsel for the IssuersCompany, substantially in the form and substance satisfactory to the Initial Purchasers in their reasonable discretion.of Exhibit B hereto. ---------
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement 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 any Authorized Person the Company's and the Subsidiary Guar- antors' 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 Issuers Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions in all material respects on their 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 Memorandum (whether or not audited)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.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which caseChief Executive Officer, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer), Chief Financial Officer to the effect that:
(i) The representations and warranties of the Company and the Subsidiary Guarantors contained in this Agreement are true and correct on and as of the Closing Date, and the Company and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto 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) To the knowledge of such officers, the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(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 the Closing Date. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation respective obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be hereunder are subject to the satisfaction or waiver accuracy, when made and on the Closing Date, of the representations and warranties of the Company and the Guarantors contained herein, to the performance by the Company and the Guarantors of their respective obligations hereunder, and to each of the following conditions additional terms and conditions:
(a) No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the Closing Date:
(a) On Date that the Closing DateOffering Memorandum contains an untrue statement of a fact which, in the Initial Purchasers shall have received opinions, dated as opinion of the Closing Date and addressed to counsel for the Initial Purchasers, is material or omits to state a fact which, in the opinion of each such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of Linklaters this Agreement, the Notes, the Guarantees, the Exchange Notes, the Exchange Guarantees, the Registration Rights Agreement, the Indenture 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.
(US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg c) Jones, Walker, Waechter, Poitevent, Carrère & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory L.L.P. shall have furnished to the Initial Purchasers in their reasonable discretion.
(b) On its written opinion, as counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, substantially in the Initial Purchasers shall have received an opinion, dated as form of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersExhibit B hereto.
(d) The Initial Purchasers shall have received from counsel for the Independent Accountants a comfort letter Initial Purchasers such opinion or letters opinions, dated the date hereof and the Closing Date, with respect to the issuance and sale of the Notes, the Offering Memorandum and other related matters as ▇▇▇▇▇▇ Brothers Inc. may reasonably require, 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.
(e) At the time of execution of this Agreement, the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to counsel for the Initial Purchasers.
, addressed to the Initial Purchasers and dated the date hereof (ei) The representations and warranties confirming that they are independent public accountants within the meaning of the Issuers contained Act and are in this Agreement shall be true and correct on and 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 and on and (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Closing Date as if made on and Offering Memorandum, as of the Closing Date; the statements of any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the a date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or not more than five days prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent 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 PricewaterhouseCoopers 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 the 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 five days prior to the date of the most recent financial statements in such Memorandum (whether or not auditedbring-down letter), there shall have been no event or development, the conclusions and no findings of such firm with respect to the financial information shall have become known, that, individually or and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Dateinitial letter.
(g) Subsequent to Neither the Company, any Guarantor nor any of their respective subsidiaries shall have sustained, since the date of the latest audited financial statements included in the Offering Memorandum, the conduct of the any material loss or interference with its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, from fire, floodexplosion, hurricane, accident flood or other calamity (calamity, whether or not insured) covered by insurance, or by from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum; and, except as otherwise stated thereinsince such date, the properties of each of the Issuers there shall not have sustained been 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, whether individually or material adverse change in the aggregatecapital stock or long-term debt of the Company, have any Guarantor or be reasonably likely to have any of their respective subsidiaries or any material adverse change, or any development involving a Material Adverse Effectprospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, any Guarantors and their respective subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum.
(h) The Company and each Guarantor shall have furnished or caused to be furnished to the Initial Purchasers shall have received a certificate on the Closing Date certificates of officers of the Issuers, dated Company and each Guarantor satisfactory to ▇▇▇▇▇▇ Brothers Inc. (i) as to the accuracy of the representations and warranties of the Company and each Guarantor herein at and as of the Closing Date, signed on behalf (ii) as to the performance by the Company and each Guarantor in all material respects of each Issuer all of their obligations hereunder to be performed at or prior to the Closing Date, (iii) providing a detailed schedule of the number of vessels operated by two Authorized Persons the Company and its subsidiaries, the location of such vessels and the average age of such vessels (except including details of the calculation thereof) as of April 30, 2002, (iv) providing a detailed schedule of the "Operating Data" included under the "Summary Historical Consolidated Financial and Other Data" in the case Offering Memorandum (including details of the calculation thereof), (v) providing a detailed schedule of the utilization rates and average number of vessels included under "Management's Discussion and Analysis of Financial Condition and Results of Operations" (including details of the calculation thereof) and (vi) as to such other matters as ▇▇▇▇▇▇ Brothers Inc. may reasonably request.
(i) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the 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 (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any Issuer organized under the laws of the NetherlandsCompany's debt securities.
(j) The Notes shall have been designated for trading on the PORTAL MarketSM.
(k) 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 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) as to make it, in which casethe judgment of ▇▇▇▇▇▇ Brothers Inc., such certificate impracticable or inadvisable to proceed with offering or delivery of the Notes being delivered on the Closing Date or which, in the judgment of ▇▇▇▇▇▇ Brothers Inc. would materially and adversely affect the financial markets or the markets for the Notes and other debt securities. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be signed by one Authorized Person who shall deemed to be in compliance with the managing director of such Issuer), provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the effect that:Initial Purchasers.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
(ai) On the Closing Date, the The Initial Purchasers Purchaser shall have received opinions, dated as an opinion of counsel to the Closing Date Issuers in form and addressed substance satisfactory to the Initial Purchasers, of each of Linklaters (US Purchaser and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Maltese law); Stroeter& ▇▇▇▇▇▇▇▇ LLP, substantially in the form of EXHIBIT B hereto. In rendering such opinion, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information, in-house legal including one or more opinions of local counsel for the Issuers, in form and substance satisfactory reasonably acceptable to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form Purchaser and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for to the Initial PurchasersPurchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchaser, 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, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers Purchaser shall have received from Coopers & ▇▇▇▇▇▇▇ L.L.P. and KPMG Peat Marwick LLP, independent public accountants for the Independent Accountants a comfort letter or St. Louis Station and Channel 32, Incorporated, respectively, "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchaser.
(eiv) The representations and warranties of the Issuers contained in this Agreement 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 any Authorized Person 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 shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(a) There shall not have been any change in the capital stock or partners or members equity of the Company or any of the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company, the Subsidiaries and the Acquisition Stations shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, other than those reflected in the Final Memorandum.
(vi) None of the Transactions shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order with respect thereto shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or the Acquisition Stations or against the Initial Purchaser relating to any of the Transactions.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries or any of the Acquisition Stations that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement and the Final Memorandum and the consummation of the Transactions 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 threatened against any of the Issuers relating to the issuance of the Securities or in connection with any of the other Transactions.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final Memorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries or any Acquisition Station that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(a) There has not been any change in the capital stock or members or partners equity of the Company or any of the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company, the Subsidiaries, and the Acquisition Stations have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to our Acquisition, other than those reflected in the Final Memorandum.
(ix) Each of the Acquisition Agreements and the St. Louis LMA shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or waivers of any provision thereof since the date of this Agreement (unless consented to in writing by the aggregate, has or would be reasonably likely to have a Material Adverse EffectInitial Purchaser).
(fx) The sale All proceedings taken in connection with the issuance of the Securities hereunder and the transactions contemplated by this Agreement and the other Basic Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchaser and counsel to the Initial Purchaser.
(gxi) Subsequent ACME Parent shall have contributed and assigned to ACME Television all of ACME Parent's assets and rights relating to the date of the MemorandumAcquisition Agreement, the conduct St. Louis LMA and the Acquisition Stations pursuant to documents satisfactory to the Initial Purchaser and its counsel.
(xii) The Company shall have received at least $21.7 million aggregate cash proceeds from the Parent Equity Contribution.
(xiii) The ACME Television Offering shall have been consummated with gross proceeds to ACME Television of the business and operations of each of the Issuers at least $115,000,000.
(xiv) There shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action"nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers shall Company or any of its Subsidiaries, or (B) it is reviewing its rating assigned to any debt securities of the Company or any of its Subsidiaries with a view to possible downgrading, or with negative implications, or direction 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectdetermined.
(hxv) The Initial Purchasers Purchaser shall have received a certificate the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect.
(xvi) The Initial Purchaser shall have received the Membership Unitholders Agreement executed by the Company and ACME Parent and such agreement shall be in full force and effect.
(xvii) The Trustee shall have received the Pledge Agreement duly executed by the Pledgors, together with (i) certificates representing all of the Issuersoutstanding membership units of ACME Television and all of the outstanding capital stock, dated partnership interests or membership units, as the Closing Datecase may be, signed on behalf owned directly by the Company of each Issuer by two Authorized Persons Subsidiary (except collectively, the "Pledged Securities") and (ii) UCC-1 Financing Statements with respect to each Pledgor to be filed in the case State of any Issuer organized under New York, the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director state of such Issuer), Pledgor's incorporation or formation and the state of such Pledgor's principal place of business.
(xviii) The Issuers shall have furnished or caused to be furnished to the effect that:Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested.
Appears in 1 contract
Sources: Purchase Agreement (Acme Intermediate Holdings LLC)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date or any Option Closing Date:
(a) On the Closing Date and on any Option Closing Date, the Initial Purchasers shall have received opinionsthe opinion, dated as of the such Closing Date or Option Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); StroeterSkadden, Arps, Slate, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law)▇▇▇▇ LLP, counsel for the Issuer and/or Company, substantially in the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretionof Annex B hereto.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the or any Option Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the such Closing Date or Option Closing Date, as the case may be, and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited or pro forma financial information in the Pricing Disclosure Package. On the Closing Date and any Option Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date and any Option Closing Date as if made on and as of the such Closing Date or Option Closing Date; the statements of any Authorized Person 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 such Closing Date or Option Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date or Option Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date or any Option Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date and any Option Closing Date, as the case may be, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)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 Time of Execution and on and as of such Closing Date or Option 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 such Closing Date or Option Closing Date;
(ii) at such Closing Date or Option Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto 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 Notes hereunder has not been enjoined (temporarily or permanently).
(h) The shares of Common Stock issuable upon conversion of the Notes shall have been duly listed for quotation on the New York Stock Exchange.
(i) The Company shall have caused each executive officer and director of the Company to execute and deliver to the Representatives, on or prior to the date of this Agreement, a letter or letters, substantially in the form attached hereto as Annex C (the “Lock-up Agreement”).
(j) The Company shall have entered into a new letter of credit facility to be provided by an affiliate of Deutsche Bank Securities Inc., and the Company’s existing corporate revolving credit facility with Bank of America, N.A. shall have been terminated. On or before the Closing Date and any Option Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Sunedison, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US i) Fulbright & Jaworski, LLP, counsel for the Company and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇Grant Prideco, in substanti▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇ same form as Exhibit B hereof and (ii) Philip A. Choyce, General Counsel of Grant Prideco, in substantially t▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may beExhibit C hereof and, in each case, in form and substance as satisfactory to the counsel for the Initial Purchasers in their reasonable discretionPurchasers.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇Reindel, counsel for the Initial Purchasers, with respect to certain legal matters resp▇▇▇ ▇▇ ▇▇▇▇▇▇n l▇▇▇▇ ▇▇tters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇ Reindel shall have received and may rely upon such certificates and other documents cer▇▇▇▇▇▇▇▇▇ ▇▇▇ ot▇▇▇ ▇▇▇uments and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from each of the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and Grant Prideco contained in this Agreement 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 any Authorized Person the Company's and Grant Prideco'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 Issuers Company and Grant Prideco shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)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.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of Grant Prideco or any of the Subsidiaries shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany and Grant Prideco, dated the Closing Date, signed on behalf of each Issuer the Company and Grant Prideco by two Authorized Persons (except in the case of any Issuer organized under the laws Grant Prideco's Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer), Chief Financial Officer to the effect that:
(i) the representations and warranties of the Company and Grant Prideco contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and each of the Company and Grant Prideco 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;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto 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;
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently); and
(iv) to their knowledge, the audited financial statements, and other financial information included therein, for the years ended December 31, 2000, December 31, 1999, December 31, 1998 and December 31, 1997, fairly present in all material respects the financial condition, results of operations and cash flows of Grant Prideco as of, and for, the periods presented therein.
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by Grant Prideco and each of the Existing Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Date.
(i) On the Closing Date, the Escrow Agreement shall have been executed and delivered by all parties thereto. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of each of the Company, Grant Prideco and the Subsidiaries as they shall have heretofore reasonably requested from the Company and Grant Prideco. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company and Grant Prideco shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments 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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇▇ PLLC, in-house legal counsel for the IssuersCompany, in form and substance satisfactory to counsel for the Initial Purchasers and substantially in the form of Exhibit B annexed hereto.
(b) The Initial Purchasers shall have received the opinion of ▇▇▇▇▇▇▇ Berlin Shereff ▇▇▇▇▇▇▇▇ LLP, in form and substance satisfactory to the Initial Purchasers and substantially in their reasonable discretionthe form of Exhibit C annexed hereto, dated as of the Closing Date and addressed to the Initial Purchasers, with respect to regulatory and related legal matters as the Initial Purchasers may require.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement 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 any Authorized Person the Company’s and the Guarantors’ 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 Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)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.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of from the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of Company’s Chief Executive Officer and President or any Issuer organized under Executive Vice President and the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, to the effect that
(i) the representations and warranties of the Company and the Guarantors 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 and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto 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;
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently); and
(iv) 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, 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, prevent the issuance or sale of the Notes or the issuance of the Guarantees.
(i) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Date.
(j) The Initial Purchasers shall have received each of the Collateral Documents executed by the Company and each other party thereto (each a “Relevant Collateral Party”), and each such document shall be in full force and effect. The Initial Purchasers shall have received a perfection certificate, substantially in the form of Exhibit D hereto, duly completed and executed by the Company and the Guarantors.
(k) In accordance with the terms of the Indenture, the Initial Purchasers and the Trustee shall have received each of the following documents, which shall be reasonably satisfactory in form and substance to the Initial Purchasers, the Trustee and each of their respective counsel with respect to the Pledged Collateral, as appropriate:
(i) policies or certificates of insurance as required by each Collateral Document, which policies or certificates shall bear endorsements of the character required by such Collateral Document;
(ii) UCC, judgment and tax lien searches confirming that the personal property comprising a part of the Collateral is subject to no liens other than Permitted Liens;
(iii) stock or member certificates representing Collateral with duly executed stock powers or other instruments of transfer;
(iv) each other document or instrument required to be delivered pursuant to the Collateral Documents;
(v) a certificate of the Company and the Guarantors, dated the Closing Date, signed on behalf of the Company and the Guarantors by the Company’s Chief Executive Officer and President or any Executive Vice President and the Chief Financial Officer, to the effect that: the Company and the Guarantors have performed all covenants and agreements described in this Section 7(k) and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder.
(l) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(m) The Securities shall have been designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD.
(n) The Initial Purchasers shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and each of the Subsidiaries in their respective jurisdiction 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.
(o) Concurrently with the sale of the Securities by the Company and the Guarantors, the Company shall have terminated all obligations and commitments under the Credit Agreement. The Initial Purchasers shall have received all other documents and agreements entered into and received thereunder in connection with the termination of the Credit Agreement, including termination of any liens or security interests in favor of the lenders thereunder. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company and the Subsidiaries shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Us Lec Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the following opinions, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to counsel for the Initial Purchasers:
(i) The opinion and negative assurance letter of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇▇, Swaine and ▇▇▇▇▇ and Calder LLP, New York counsel for the Company;
(Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ii) The opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., North Carolina counsel for the Company; and
(iii) The opinion of Sidley Austin llp, counsel for 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 opinionopinions, Milbank▇▇▇▇▇▇▇, Tweed▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. and ▇▇▇▇▇▇ shall have received and ▇▇▇▇▇▇ llp may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such mattersrequest.
(db) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Accountants, with respect to each of the Company and TXI, a comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, with respect to the audited and any unaudited (and, in the case of the Company, pro forma) financial information in the Pricing Disclosure Package or the Final Memorandum. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants, with respect to each of the Company and TXI, a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the applicable comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in such comfort letter dated the date hereof and similarly address the audited and any unaudited (and, in the case of the Company, pro forma) financial information in the Pricing Disclosure Package and the Final Memorandum.
(ec) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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 Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (for avoidance of doubt, exclusive of any amendment or supplement thereto after the date hereofthereto), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)the Pricing Disclosure Package and the 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.
(fd) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(ge) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (for avoidance of doubt, the conduct exclusive of any amendment or supplement thereto), none of the Company or any of its subsidiaries shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hf) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its President or any Senior Vice President and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)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 Time of Execution and 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 hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (for avoidance of doubt, exclusive of any amendment or supplement thereto), 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 Notes hereunder has not been enjoined (temporarily or permanently).
(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. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters, schedules or instruments relating to the business, corporate, legal and financial affairs of the Company as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, 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 and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg Winston & Co. (certain tax matters); ▇▇▇▇▇▇ ▇, special counsel to the Issuers and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇, in-house legal Esq., general counsel for of the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for to the Initial Purchasers, dated the Closing Date, substantially in the forms of EXHIBITS B AND C hereto (with customary qualifications and assumptions), as well as letters authorizing the Initial Purchasers to rely on the opinions delivered by counsel to the Issuers in respect of the Transaction Documents. In rendering such opinion, Winston & ▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Initial Purchasers, as they may reasonably request to pass upon such matters. Such counsel may also 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 Illinois and New York and the corporate laws of the State of Delaware.
(ii) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Rein- del, counsel to the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, independent public accountants for the Independent Accountants a comfort letter or Issuers, "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for to the Initial Purchasers.
(eiv) The representations and warranties of the Issuers contained in this Agreement 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 any Authorized Person 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 all material respects on and as of the Closing Date; the Issuers shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (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 Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction 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, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or any other transac- tions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent 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, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct in all material respects as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction 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 threatened against any of the Issuers relating to the issuance of the Securities or to their knowledge, relating to the Initial Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there ex- ists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or developmentwaivers of any provision thereof since the date of this Agreement. On the Closing Date, the New Senior Credit Facility shall provide for (i) revolving credit borrowings of not less than $117 million and no information (ii) term loan borrowings of not less than $333 million, which $333 million shall have become known, that, individually or in be borrowed by the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) Company on the Closing Date.
(gx) Subsequent All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the date of Initial Purchasers and counsel to the Memorandum, Initial Purchasers. The Initial Purchasers and counsel to the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, 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 each of the Issuers 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, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the IssuersNotes and from initial borrowings under the New Senior Credit Facility substantially as described under "Use of Proceeds" in the Final Memorandum.
(xii) [Intentionally omitted].
(xiii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, dated that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications.
(xiv) On or before the Closing Date, signed on behalf of each Issuer the Initial Purchasers shall have received the Registration Rights Agreement executed by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, Company and such certificate agreement shall be signed by one Authorized Person who in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the managing director Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents 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 and counsel to the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that: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 Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions(i) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg Dechert Price & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law"DP&R"), counsel for the Issuer and/or which opinion shall be satisfactory to counsel for the GuarantorsInitial Purchasers, and substantially in the form of Exhibit A hereto, (ii) a reliance letter, dated as of the case may be, in each case, in form Closing Date and substance satisfactory addressed to the Initial Purchasers, of DP&R, allowing the Initial Purchasers to rely on the opinion required to be delivered pursuant to Section 6.3(f) of the Merger Agreement, which opinion shall be satisfactory to counsel for the Initial Purchasers and (iii) a reliance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of DP&R, allowing the Initial Purchasers to rely on the opinion delivered in their reasonable discretion.connection with the execution and delivery of the New Credit Facility, which opinion shall be satisfactory to counsel for the Initial Purchasers;
(b) On the Closing Date, the Initial Purchasers shall have received an the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., special Arizona counsel to the Issuer and the Company, in form and substance satisfactory to counsel for the Initial Purchasers, to the extent that:
(i) Each of the Issuer and the Company is duly incorporated, validly existing and in good standing in its jurisdiction of incorporation and has all requisite corporate power and authority to own its properties and conduct its business as described in the Final Memorandum. Each of the Issuer and the Company is duly qualified to do business as a foreign corporation in good standing in each of the jurisdictions where the conduct of its business or the ownership of property would require such qualification.
(ii) To the knowledge of such counsel, all of the outstanding shares of capital stock of the Issuer and the Company (including the capital stock issued in connection with the Equity Contribution, the Equity Rollover and the Senior Exchangeable Preferred Stock) have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights, to our knowledge, except for liens under the New Credit Facility.
(iii) Each of the Issuer and the Company has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Securities, the Exchange Securities and the Private Exchange Securities; the Indenture has been duly and validly authorized by each of the Issuer and the Company.
(iv) The issuance of the Notes has been duly and validly authorized by the Issuer and the Company.
(v) The issuance of the Exchange Notes and the Private Exchange Notes has been duly and validly authorized by the Company.
(vi) Each of the Issuer and 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 and validly authorized by the Company and the Issuer.
(vii) The Guarantees have been duly and validly authorized for issuance and sale to the Initial Purchasers.
(viii) Each of the Issuer and the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and the Assumption Agreement and to consummate the transactions contemplated hereby; this Agreement, the Assumption Agreement and the consummation by the Issuer and the Company of the transactions contemplated hereby and thereby have been duly and validly authorized by each of the Issuer and the Company. This Agreement has been duly executed and delivered by each of the Issuer and the Company.
(ix) To the knowledge of such counsel, the execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement, the Assumption Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchasers) 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 articles of incorporation or bylaws (or similar organizational document) of the Issuer or 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) any present law or regulation of any governmental agency or authority of the State of Arizona or the Arizona General Business Corporation Act, or (iii) based solely on a review of judgments, decrees, orders and rulings disclosed by the Issuer, the Company and the Arizona Guarantors in officers' certificates, any judgment, decree, order or rule known to such counsel to be applicable to the Issuer or the Company 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.
(x) No consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Issuer or the Company of the Securities to the Initial Purchasers or the consummation by the Issuer or 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.
(xi) Upon the payment of any filing fee and proper filing of the certificate of the Articles of Merger and Plan of Merger with the Arizona Corporation Commission, the Recapitalization Merger will be effective, as contemplated by the Merger Agreement, assuming publication in accordance with the laws of the State of Arizona. Such counsel shall also state that in rendering the opinion required by Section 7(a) and (d) hereof, each of Dechert Price & ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may rely upon the opinions provided hereby. Such counsel shall also allow the Initial Purchasers to rely upon the opinions required to be delivered by such counsel pursuant to the terms of the Merger Agreement and in connection with the execution of the New Credit Facility, in-house legal which opinions shall be in form and substance satisfactory to counsel for the IssuersInitial Purchasers.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special California counsel to PII and Penhall Company (the "California Guarantors"), in form and substance satisfactory to counsel for the Initial Purchasers, to the extent that:
(i) Each of the California Guarantors is validly existing as a corporation under the laws of, and is in good standing in the State of California and has all requisite corporate power and authority to own its properties and conduct its business as described in the Final Memorandum.
(ii) Each of the California Guarantors has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Securities, the Exchange Securities and the Private Exchange Securities; the Supplemental Indenture, which provides that each of the California Guarantors shall thereby become a party to the Indenture, has been duly and validly authorized by each of the California Guarantors.
(iii) The Guarantees have been duly and validly authorized by each of the California Guarantors. The Guarantees to be endorsed on the Exchange Notes and the Private Exchange Notes (the "Exchange Guarantees") have been duly and validly authorized by each of the California Guarantors.
(iv) Each of the California Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Assumption Agreement, which provides that each of the California Guarantors shall thereby become a party to this Agreement and the Registration Rights Agreement, has been duly and validly authorized by the California Guarantors.
(v) Each of the California Guarantors 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 executed by each of the California Guarantors.
(vi) 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 Securities to the Initial Purchasers) 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 certificate of incorporation or bylaws (or similar organizational document) of either of the California Guarantors, or (ii) (assuming compliance with all applicable state securities or "Blue Sky" laws and compliance of the Reorganization Merger and Certificate of Merger with the requirements of the California Corporations Code and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) the California Corporations Code or any other present law or regulation of any governmental agency or authority of the State of California applicable to the California Guarantors that, in our experience, is generally applicable to transactions in the nature of those contemplated by this Agreement, the Indenture or the Registration Rights Agreement, or (iii) any judgment, decree, order or rule known to such counsel to be applicable to the California Guarantors or any of their reasonable discretionrespective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(cvii) No consent, approval, authorization or order of any California governmental authority is required for the consummation by the California Guarantors of the transactions contemplated hereby under any present law or regulation of any governmental agency or authority of the State of California applicable to the California Guarantors that, in our experience, is generally applicable to transactions in the nature of those contemplated by this Agreement, the Indenture or the Registration Rights Agreement, 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. Such counsel shall also state that in rendering the opinion required by Section 7(a) and (d) hereof, each of Dechert Price & ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may rely upon this opinions provided hereby.
(d) On the Closing Date, the Initial Purchasers shall have received a letter from Irell & ▇▇▇▇▇▇▇ allowing the Initial Purchasers to rely upon their opinions delivered pursuant to the terms of the Merger Agreement and in connection with the execution of the New Credit Facility, which opinions shall be in form and substance satisfactory to counsel for the Initial Purchasers.
(e) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for 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 opinion, Milbank, Tweed, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(df) The Initial Purchasers shall have received from each of the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(eg) The representations and warranties of the Issuers Issuer contained in this Agreement 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 and the representations and warranties of the Company and the Guarantors contained in this Agreement and made in the Assumption Agreement shall be true and correct as of the Closing Date; the statements of any Authorized Person the Issuer's, the Company's and the Guarantors' 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 Issuer, the Company and the Guarantors in all material respects shall have performed all covenants and agreements and satisfied all conditions on their 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 Memorandum (whether or not audited)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.
(fh) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gi) Subsequent to the date of the Memorandummost 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 each of the Issuers Penhall Group shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hj) The Initial Purchasers shall have received a certificate separate certificates of each of the IssuersIssuer, the Company and each Guarantor, dated the Closing Date, signed on behalf of the Issuer, the Company and each Issuer Guarantor by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuer, the Company or the Guarantors as the case may be, contained in this Agreement are true and correct on and as of the Closing Date and, in the case of the Issuer, on the date hereof, and each of the Issuer, the Company and the Guarantors in all material respects 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;
(ii) At the Closing Date, since the date hereof or, except as described in the Final Memorandum, since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto 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) To the knowledge of the Issuer, the Company or the Guarantor, as applicable, the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(k) The New Credit Facility and each of the other documents necessary to consummate the transactions contemplated by the Final Memorandum under the caption "The Transactions" shall have been, or shall concurrently be, executed and delivered by the parties thereto, shall be in full force and effect and in form and substance consistent with the description thereof contained in the Final Memorandum in all material respects.
(l) On the Closing Date, the Company shall have received the proceeds f
Appears in 1 contract
Sources: Purchase Agreement (Penhall Co)