Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions: (a) All the representations and warranties of the Company and the Guarantor contained in this Agreement shall be true and correct on the date hereof and the Closing Date, with the same force and effect as if made on and as of the date hereof and the Closing Date, respectively. The Company and the Guarantor shall have performed or complied with all of the agreements herein contained and required to be performed or complied with by the Company or the Guarantor on or prior to the Closing Date. (1) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 9:00 a.m., New York City time, on January 30, 1997, or at such later date and time as the Initial Purchasers may approve in writing; (2) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Series A Notes; and (3) at the Closing Date, no stop order preventing the use of the Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of any of the Series A Notes for sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(f) hereof shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending before or, to the knowledge of the Company or the Guarantor, be contemplated. (1) Since the date hereof or since the dates as of which information is given in the Offering Memorandum, there shall not have been any event that had a Material Adverse Effect, or any development involving a prospective change that would have a Material Adverse Effect, whether or not arising in the ordinary course of business; (2) since the date of the latest balance sheet included in the Offering Memorandum, there has not been any change that would have a Material Adverse Effect, or any development involving a prospective change that would have a Material Adverse Effect, in the capital stock or in the long-term debt of the Company, the Guarantor or any of the Subsidiaries from that set forth in the Offering Memorandum; (3) the Company, the Guarantor and the Subsidiaries shall have no liability or obligation, direct or contingent, that is required to be disclosed on a balance sheet in accordance with GAAP and that is not disclosed on the latest balance sheet included in (or otherwise disclosed in) the Offering Memorandum; and (4) the Company, the Guarantor and the Subsidiaries shall have no material liability or obligation, direct or contingent, other than those reflected in the Offering Memorandum. (d) The Initial Purchasers shall have received certificates of the Company and the Guarantor (satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, executed on behalf of each of the Company and the Guarantor by the President or any Vice President and a principal financial or accounting officer of the Company and the Guarantor, confirming, as of the Closing Date, all matters set forth in Section 9(a), (b), and (c). (e) The Initial Purchasers shall have received on the Closing Date an opinion (substantially in the following form), dated the Closing Date, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company and the Guarantor, to the effect that: (i) Each of the Company, the Guarantor and their subsidiaries which are listed on Exhibit A to such opinion and incorporated in Delaware (the "Delaware Subsidiaries") has been duly incorporated and is validly --------------------- existing as a corporation and in good standing under the laws of the State of Delaware. The Company and the Guarantor have the corporate power and authority to execute and deliver the Notes and the Guarantee, respectively, and to enter into and perform their respective obligations under the Operative Documents. (ii) The execution and delivery by the Company of the Notes, the execution by the Guarantor of the Guarantee and the execution, delivery and performance by the Company and the Guarantor of their respective obligations under each of the Operative Documents do not (a) (i) conflict with the certificate of incorporation or by-laws or other governing documents of the Company, the Guarantor and each of the Delaware Subsidiaries, or (ii) constitute a violation of or default under the terms of any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, the Guarantor or any of the Subsidiaries which is listed on Exhibit B to such opinion is a party or bound (except that such counsel need not express an opinion as to any covenant, restriction or provision with respect to financial covenants, ratios or tests or any aspect of the financial condition or results of operations of the Company, the Guarantor or any of the Subsidiaries and such counsel may assume that all such agreements or instruments are governed by the law of New York or Delaware), or (iii) result in any violation of any provision of any Applicable Laws (as hereinafter defined), or (iv) result in a violation of any judgment, order or decree of any court, regulatory body, administrative agency or governmental body or arbitrator (collectively, "Orders") of the United States, the State of New ------ York and the State of Delaware having jurisdiction over the Company, the Guarantor or any of the Subsidiaries or any of their properties or assets. Such counsel's opinion expressed in clause (iv) of this paragraph (e)(ii) may be based on its review of those Orders specifically identified to such counsel by the Company and the Guarantor as being Orders to which they are subject. In addition, such counsel need express no opinion with respect to any federal or state securities or Blue Sky laws or the matters on which opinions are rendered in paragraph (xi) below. "Applicable Laws" shall mean those laws, rules and regulations of the State of New York, the general corporate law of the State of Delaware and of the United States of America which, in such counsel's experience, are normally applicable to transactions of the type contemplated by this Agreement and the other Operative Documents, but without having made any special investigation concerning any other laws, rules or regulations.
Appears in 1 contract
Sources: Purchase Agreement (Cellular Communications of Puerto Rico Inc)
Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase the Series A Notes under this Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantor Issuers contained in this Agreement shall be true and correct on the date hereof and the Closing Date, Date with the same force and effect as if made on and as of the date hereof and the Closing Date, respectively. The Company and the Guarantor Issuers shall have performed or complied with all of the agreements herein contained and required satisfied all conditions to be performed or performed, complied with or satisfied by the Company or the Guarantor them under this Agreement on or prior to the Closing Date.
(1i) The Offering Memorandum Circular shall have been printed and copies distributed to the Initial Purchasers not later than 9:00 a.m., New York City time, on January 30, 1997the second business day following the date of this Agreement, or at such later date and time as the Initial Purchasers may approve in writing;
; (2ii) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Series A Notes; and
and (3iii) at the Closing Date, (A) no stop order preventing the use of the Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of any of the Series A Notes for sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(f) hereof shall have been issued and (B) no proceedings for that purpose shall have been commenced or shall be pending before or, to the knowledge of the Company or the Guarantorany Issuer, be contemplated.
(1) Since the date hereof or since of the dates as of which information is given latest balance sheet included in the Offering MemorandumDocuments, there shall not have been any event that had a Material Adverse Effect, or any development involving a prospective change that would be reasonably likely to have a Material Adverse Effect, whether or not arising in the ordinary course of business; (2) since the date of the latest balance sheet included in the Offering MemorandumDocuments, there has not been any change that would have a Material Adverse Effectchange, or any development involving a prospective change that would have a Material Adverse Effectchange, in the capital stock or in the long-term debt of the Company, the Guarantor or any of the Subsidiaries Company and its subsidiaries from that set forth in the Offering MemorandumDocuments (other than as a result of the Transactions); (3) the Company, the Guarantor Company and the Subsidiaries shall have no liability or obligation, direct or contingent, that is required to be disclosed on a balance sheet in accordance with GAAP and that is not disclosed on the latest balance sheet included in (or otherwise disclosed in) the Offering Memorandum; and (4) the Company, the Guarantor and the Subsidiaries its subsidiaries shall have no material liability or obligation, direct or contingent, other than those reflected in the Offering Memorandum.
Circular; and (d4) The on the Closing Date, the Initial Purchasers shall have received certificates of the Company and the Guarantor (satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, executed signed on behalf of each of the Company and the Guarantor Issuer by the President or any Vice President and a principal financial or accounting officer Chief Financial Officer of the Company and the Guarantoreach such Issuer, confirming, as of the Closing Date, confirming all matters set forth in Section Sections 9(a), (b), ) and (c)) hereof.
(ed) The Initial Purchasers shall have received on the Closing Date an opinion (substantially in satisfactory to the following form), Initial Purchasers and counsel to the Initial Purchasers) dated the Closing Date, of Skadden, Arps, Slate, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇ LLP▇▇, counsel for the Company and the GuarantorIssuers, to the effect that:
(i1) Each of the Company, the Guarantor and their subsidiaries which are listed on Exhibit A to such opinion and incorporated in Delaware (the "Delaware Subsidiaries") has been duly incorporated and Issuers is validly --------------------- existing as a corporation duly organized, validly existing and in good standing under the laws of the State its jurisdiction of Delaware. The Company and the Guarantor have the incorporation, has full corporate power and authority to execute carry on its respective business as it is currently being conducted and deliver to own, lease and operate its respective properties, and, to such counsel's knowledge, is duly qualified and is in good standing as a foreign corporation registered to do business in each jurisdiction in which the Notes nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not be reasonably likely to have a Material Adverse Effect;
(2) All of the outstanding capital stock of the Company and the Guarantee, respectively, each of its domestic subsidiaries has been duly authorized and validly issued and is fully paid and nonassessable and is not subject to preemptive or similar rights;
(3) Each Issuer has all necessary corporate power and authority to enter into and perform their respective its obligations under the Operative Documents.Documents and to issue, sell and deliver the Series A Notes to the Initial Purchasers to be sold by the Initial Purchasers pursuant hereto;
(ii4) The execution and delivery by the Company No consent, approval, authorization or order of, or filing or registration with, any regulatory body, administrative agency, or other governmental agency (except as securities or Blue Sky laws of the Notes, the execution by the Guarantor of the Guarantee and various states may require) which has not been made or obtained is required for the execution, delivery and performance by the Company and the Guarantor of their respective obligations under each of the Operative Documents do and the valid issuance and sale of the Series A Notes to the Initial Purchasers as contemplated by this Agreement or the offering of the Series A Notes as contemplated by the Offering Circular, except where the failure to obtain any such consents or waivers, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect or adversely affect the Company's ability to consummate the Transactions;
(a5) To such counsel's knowledge, no consents or waivers from any person are required to consummate the transactions contemplated by the Operative Documents or the Offering Documents other than such consents and waivers as have been or will be obtained;
(iA) conflict None of the Company or any of its domestic subsidiaries is in violation of its charter or bylaws, and (B) to such counsel's knowledge, none of the Company or any of its subsidiaries is in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other agreement, indenture or instrument material to the conduct of the business of the Company or any of its subsidiaries, to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or their property is bound, except (x) in the case of clause (B), for such consents or waivers which, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect or adversely affect the Company's ability to consummate the Transactions and (y) as will be obtained concurrently with the certificate of incorporation or by-laws or other governing documents consummation of the CompanyTransactions;
(7) The execution, delivery and performance of the Guarantor and Operative Documents by each of the Delaware SubsidiariesIssuers, compliance by each of the Issuers with the provisions thereof and the Series A Notes, and the consummation of the transactions contemplated hereby and thereby does not conflict with or constitute a breach of any of the terms or provisions of, or a default under, or result in the imposition of a lien or encumbrance on any properties of the Company or any of its subsidiaries, or an acceleration of indebtedness pursuant to, (ii1) constitute a violation the charter or bylaws of the Company or default under the terms any of its domestic subsidiaries, (2) any bond, debenture, note, indenture, mortgage, deed of trust, loan agreement trust or other agreement or instrument known to such counsel to which the Company, the Guarantor Company or any of the Subsidiaries which is listed on Exhibit B to such opinion its subsidiaries is a party or bound (except that such counsel need not express an opinion as to any covenant, restriction or provision with respect to financial covenants, ratios or tests or any aspect of by which the financial condition or results of operations of the Company, the Guarantor Company or any of the Subsidiaries and such counsel may assume that all such agreements its subsidiaries or instruments are governed by the law any of New York or Delaware)their property is bound, or (iii3) result in to such counsel's knowledge, any violation domestic law or administrative regulation applicable to the Company or any of its subsidiaries or any provision of any Applicable Laws (as hereinafter defined)their assets or properties, or (iv) result in a violation of any judgment, order or decree of any court, regulatory body, administrative court or governmental agency or governmental body or arbitrator (collectively, "Orders") of authority entered in any proceeding to which the United States, the State of New ------ York and the State of Delaware having jurisdiction over the Company, the Guarantor Company or any of its subsidiaries was or is now a party or to which the Subsidiaries Company or any of its subsidiaries or any of their properties property may be subject, except, in the case of clause (2), as would not, individually or assets. Such in the aggregate, reasonably be likely to have a Material Adverse Effect or adversely affect the Company's ability to consummate the Transactions;
(8) This Agreement has been duly authorized and validly executed by each of the Issuers and (assuming the due execution and delivery thereof by the Initial Purchasers) is a legally valid and binding obligation of each of the Issuers, enforceable against each of the Issuers in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally, (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity) and (iii) limited by securities laws prohibiting or limiting the availability of, and public policy against, indemnification or contribution;
(9) Each of the Issuers has duly authorized, executed and delivered the Indenture, and (assuming due authorization, execution and delivery thereof by the Trustee) the Indenture is a legally valid and binding obligation of each of the Issuers, enforceable against each of the Issuers in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally and (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity);
(10) The Company has duly authorized the Series A Notes and, when issued and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms hereof, the Series A Notes will conform to the description thereof in the Offering Circular, and will be the legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally and (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity);
(11) Each of the Guarantors has duly authorized its Guarantee to be endorsed on the Series A Notes and, when executed and delivered in accordance with the terms of the Indenture and when the Series A Notes have been issued and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Initial Purchasers in accordance with the terms hereof, the Guarantees will conform to the description thereof in the Offering Circular, and will be the legally valid and binding obligations of each of the Guarantors, enforceable against each of them in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally and (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity);
(12) The Company has duly authorized the Series B Notes;
(13) Each of the Guarantors has duly authorized its Guarantee of the Series B Notes;
(14) Each of the Issuers has duly authorized, executed and delivered the Registration Rights Agreement, and (assuming the due execution and delivery thereof by the Initial Purchasers) the Registration Rights Agreement is a legally valid and binding obligation of each of the Issuers, enforceable against each of the Issuers in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally, (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity) and (iii) limited by securities laws prohibiting or limiting the availability of, and public policy against, indemnification or contribution;
(15) To such counsel's opinion expressed in clause knowledge, there is (ivi) no action, suit or proceeding before or by any court, arbitrator or governmental agency, body or official, domestic or foreign, now pending, threatened or contemplated to which the Company or any of this paragraph (e)(ii) its subsidiaries is or may be based on its review a party or to which the business or property of those Orders specifically identified to such counsel by the Company or any of its subsidiaries is or may be subject, (ii) no statute, rule, regulation or order that has been enacted, adopted or issued by any governmental agency or proposed by any governmental body, or (iii) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction applicable to the Company or any of its subsidiaries has been issued that, in the case of clauses (i), (ii) and (iii) above, (a) is required to be disclosed in the Offering Circular and that is not so disclosed, (b) would interfere with or adversely affect the issuance of the Series A Notes or the consummation of the Transactions, or (c) would reasonably be likely to invalidate any provision or the validity of the Operative Documents or the Series A Notes;
(16) To such counsel's knowledge, no holder of any security of any Issuer has any right to require registration of any of such Issuer's securities, other than pursuant to the Stockholders Agreement and the Guarantor Registration Rights Agreement;
(17) The statements under the captions "Certain Transactions," "Description of Certain Indebtedness," and "Certain Tax Considerations" in the Offering Circular, insofar as being Orders such statements constitute a summary of legal matters, documents or proceedings referred to which they therein, are subjectcorrect in all material respects;
(18) None of the Issuers is an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(19) When the Series A Notes are issued and delivered pursuant to this Agreement, such Series A Notes will not be of the same class (within the meaning of Rule 144A under the Act) as securities of any Issuer that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system;
(20) The Indenture is not required to be qualified under the Trust Indenture Act prior to the first to occur of (i) the Registered Exchange Offer and (ii) the effectiveness of the Shelf Registration Statement;
(21) No registration under the Act of the Series A Notes is required for the sale of the Series A Notes to the Initial Purchasers as contemplated hereby or for the Exempt Resales (assuming (i) that the Eligible Purchasers who buy the Series A Notes in the Exempt Resales are QIBs or Accredited Investors or non-U.S. Persons, (ii) the accuracy of, and compliance with, the representations of the Initial Purchasers and those of the Issuers contained in Sections 6 and 7 hereof and (iii) the accuracy of the representations made by each Accredited Investor who purchases Series A Notes pursuant to an Exempt Resale as set forth in the letters of representation executed by such Accredited Investors in the form of Annex A to the Offering Circular). In addition, such counsel need express shall state that it has participated in conferences with officers and other representatives of the Issuers, representatives of the independent public accountants for the Company, the Initial Purchasers' representatives and counsel for the 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 assumes no opinion responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Circular, and have not made any independent check or verification thereof, during the course of such participation (relying as to materiality to the extent such counsel deemed appropriate upon the statements of officers and other representatives of the Company), no facts came to such counsel's attention that caused such counsel to believe that the Offering Circular, as of its date or as of the Closing Date, contained an untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; it being understood that such counsel expresses no belief with respect to any federal the financial statements, schedules and other financial and statistical data included in the Offering Circular or state securities or Blue Sky laws or incorporated therein.
(e) The Initial Purchasers shall have received copies, addressed to the matters on which opinions are rendered Initial Purchasers, of each opinion of counsel to the Company delivered in paragraph (xi) below. "Applicable Laws" shall mean those lawsconnection with the Transactions, rules and regulations of the State of New Yorkincluding, the general corporate law of the State of Delaware and of the United States of America whichwithout limitation, in such counsel's experience, are normally applicable to transactions of connection with the type contemplated by this Agreement Acquisitions and the other Operative Documents, but without having made any special investigation concerning any other laws, rules or regulations.C
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Series A Notes under Original Notes, as provided for in this Agreement are Agreement, shall be subject to the satisfaction of each of the following conditionsconditions prior to or concurrently with such purchase:
(a) All of the representations and warranties of the Company and the Guarantor Issuers contained in this Agreement shall be true and correct on the date hereof and of this Agreement and, after giving effect to the transactions contemplated hereby, on the Closing Date, with the same force except that if a representation and effect as if warranty is made on and as of the a specific date, and such date hereof is expressly referred to therein, such representation and the Closing Date, respectivelywarranty shall be true and correct as of such date. The Company and the Guarantor Issuers shall have performed or complied with all of the agreements herein and covenants contained in this Agreement and required to be performed or complied with by the Company or the Guarantor on them at or prior to the Closing Date.
(1b) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 9:00 a.m., New York City time, on January 30, 1997, the day following the date of this Agreement or at such later date and time as the Initial Purchasers may approve in writing;
(2) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Series A Notes; and
(3) at the Closing Date, no determine. No stop order preventing the use of the Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of any of the Series A Original Notes for sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(f) hereof shall have been issued and no proceedings proceeding for that purpose shall have been commenced or shall be pending before or, to the knowledge of the Company or the Guarantor, be contemplatedthreatened.
(1c) Since the date hereof No action shall have been taken and no statute, rule, regulation or since the dates order shall have been enacted, adopted or issued by any governmental agency that would, as of which information is given the Closing Date, prevent the issuance of the Original Notes or consummation of the Exchange Offer; except as disclosed in the Offering Memorandum, there no action, suit or proceeding shall not have been commenced and be pending against or affecting or threatened against either Issuer or any event that had Subsidiary before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or any development involving a prospective change that would have a Material Adverse Effect, whether or not arising in ; and no stop order preventing the ordinary course of business; (2) since the date use of the latest balance sheet included in Preliminary Offering Memorandum or the Offering Memorandum, there has not been or any change that would have a Material Adverse Effectamendment or supplement thereto, or any development involving a prospective change order asserting that would have a Material Adverse Effect, in the capital stock or in the long-term debt of the Company, the Guarantor or any of the Subsidiaries from that set forth in transactions contemplated by this Agreement are subject to the Offering Memorandum; (3) registration requirements of the Company, the Guarantor and the Subsidiaries Act shall have no liability or obligation, direct or contingent, that is required to be disclosed on a balance sheet in accordance with GAAP and that is not disclosed on the latest balance sheet included in (or otherwise disclosed in) the Offering Memorandum; and (4) the Company, the Guarantor and the Subsidiaries shall have no material liability or obligation, direct or contingent, other than those reflected in the Offering Memorandumbeen issued.
(d) The Initial Purchasers shall have received certificates of the Company and the Guarantor (satisfactory to the Initial Purchasers and counsel to the Initial Purchasers)certificates, dated the Closing Date, executed on behalf signed by two authorized officers of each of the Company and the Guarantor by the President or any Vice President and a principal financial or accounting officer of the Company and the Guarantor, Holdings confirming, as of the Closing Date, all to their knowledge, the matters set forth in Section 9(aparagraphs (a), (b), ) and (c)) of this Section 8.
(e) The Initial Purchasers shall have received on the Closing Date (i) an opinion (substantially in the following form), dated the Closing Date, addressed to the Initial Purchasers, of SkaddenRopes & ▇▇▇▇, ArpsLLP, Slatecounsel to the Issuers, substantially in the form of Exhibit A, attached hereto.
(f) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, in form and substance satisfactory to the Representative.
(g) The Initial Purchasers shall have received a “comfort letter” from PricewaterhouseCoopers, LLP, independent public accountants for the Company Issuers, dated the date of this Agreement, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers (it being understood that if the Offering Memorandum is not printed on the date hereof, such comfort letter shall, on the date hereof, contain excerpts from the Preliminary Offering Memorandum indicating the procedures performed by such independent public accounts on the financial data included in the Preliminary Offering Memorandum and that, within twenty four hours after the Offering Memorandum becomes available in final form (electronically or otherwise), the Initial Purchasers shall receive replacement excerpts from the Offering Memorandum indicating the procedures performed by such independent public accounts on the financial data included therein in form and substance satisfactory to the Representative and counsel to the Initial Purchasers). In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from PricewaterhouseCoopers, LLP, dated as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Representative and counsel to the Initial Purchasers.
(h) The Issuers shall have entered into the Indenture and the GuarantorRepresentative shall have received copies, to the effect that:conformed as executed, thereof.
(i) Each of The Issuers shall have entered into the Company, the Guarantor and their subsidiaries which are listed on Exhibit A to such opinion and incorporated in Delaware (the "Delaware Subsidiaries") has been duly incorporated and is validly --------------------- existing as a corporation and in good standing under the laws of the State of Delaware. The Company Registration Rights Agreement and the Guarantor Representative shall have the corporate power and authority to execute and deliver the Notes and the Guaranteereceived counterparts, respectivelyconformed as executed, and to enter into and perform their respective obligations under the Operative Documentsthereof.
(iij) The execution and delivery by Prior to or simultaneous with the Company issuance of the Notes, the execution by Contribution, the Guarantor of the Guarantee Credit Agreement Amendment and the execution, delivery and performance by Newco Guarantee shall have been consummated substantially as described in the Company and Offering Memorandum.
(k) On or prior to the Guarantor of their respective obligations under each of the Operative Documents do not (a) (i) conflict with the certificate of incorporation or by-laws or other governing documents of the CompanyClosing Date, the Guarantor Co-Issuer shall have duly executed and each delivered to the Initial Purchasers the Joinder Agreement in the form of the Delaware Subsidiaries, Exhibit B attached hereto and thereby become a party hereto.
(l) There exists no event or (ii) condition that would constitute a violation default or an event of or default under the terms of any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, the Guarantor or any of the Subsidiaries which is listed on Exhibit B Transaction Documents that could reasonably be expected to such opinion is have, individually or in the aggregate, a party Material Adverse Effect or bound (except that such counsel need not express an opinion as to any covenant, restriction or provision with respect to financial covenants, ratios or tests or any aspect adversely affect the ability of the financial condition or results of operations Issuers to consummate the offering of the Company, Original Notes.
(m) All government authorizations required in connection with the Guarantor or any issue and sale of the Subsidiaries and such counsel may assume that all such agreements or instruments are governed by the law of New York or Delaware), or (iii) result in any violation of any provision of any Applicable Laws (Notes as hereinafter defined), or (iv) result in a violation of any judgment, order or decree of any court, regulatory body, administrative agency or governmental body or arbitrator (collectively, "Orders") of the United States, the State of New ------ York and the State of Delaware having jurisdiction over the Company, the Guarantor or any of the Subsidiaries or any of their properties or assets. Such counsel's opinion expressed in clause (iv) of this paragraph (e)(ii) may be based on its review of those Orders specifically identified to such counsel by the Company and the Guarantor as being Orders to which they are subject. In addition, such counsel need express no opinion with respect to any federal or state securities or Blue Sky laws or the matters on which opinions are rendered in paragraph (xi) below. "Applicable Laws" shall mean those laws, rules and regulations of the State of New York, the general corporate law of the State of Delaware and of the United States of America which, in such counsel's experience, are normally applicable to transactions of the type contemplated by under this Agreement and the performance of the obligations of Holdings and the Co-Issuer hereunder and under the Indenture and the Notes shall be in full force and effect.
(n) The Initial Purchasers shall have been furnished with wiring instructions for the application of the proceeds of the Original Notes in accordance with this Agreement and such other Operative Documentsinformation as they may reasonably request.
(o) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, but without having made counsel to the Initial Purchasers, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any special investigation concerning any other lawsof the representations, rules warranties or regulationsconditions contained in this Agreement.
(p) The Original Notes shall be eligible for trading in Portal upon issuance.
(q) The Notes shall be eligible for clearance and settlement through DTC. The documents required to be delivered by this Section 8 will be delivered at the office of counsel for the Initial Purchasers on the Closing Date.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers Purchaser to purchase and pay for the Series A Senior Discount Notes under this Agreement are as provided herein, shall be subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantor NEHC contained in this Agreement shall be true and correct on the date hereof and the Closing Date, with the same force and effect as if made on and as of the date hereof and the Closing Date, respectively. The Company and the Guarantor NEHC shall have performed or complied with all of its obligations and agreements and satisfied the agreements herein contained and required conditions to be performed or performed, complied with or satisfied by the Company or the Guarantor it on or prior to the Closing Date.
(1) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers Purchaser not later than 9:00 a.m., New York City time, on January 30, 1997the day following the date of this Agreement, or at such later date and time as to which the Initial Purchasers Purchaser may approve in writingapprove;
(2) no action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency that would, as of the Closing Date, prevent the issuance of the Senior Discount Notes;
(3) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date or, to the best knowledge of NEHC, threatened against, NEHC which would prevent the issuance of the Series A Senior Discount Notes; and
(34) at the Closing Date, no stop order preventing the use of the Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of any of the Series A Senior Discount Notes for sale in any jurisdiction designated by the Initial Purchasers Purchaser pursuant to Section 5(f5(e) hereof shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending before threatened or, to the NEHC's knowledge of the Company or the Guarantor, be contemplated.
(c) (1) (i) Since the date hereof or since of the dates as of which information is given latest balance sheet in the Offering Memorandum, there shall not have been any event that had a Material Adverse Effectmaterial adverse change, or any development involving a prospective change that would have a Material Adverse Effectmaterial adverse change, in the assets, properties, business, results of operations, condition (financial or otherwise) or prospects, whether or not arising in the ordinary course of business; , of NEHC and its subsidiaries, taken as a whole, (2ii) since the date of the latest balance sheet included in the Offering Memorandum, there has shall not have been any change that would have a Material Adverse Effectmaterial change, or any development involving that is reasonably likely to result in a prospective change that would have a Material Adverse Effectmaterial change, in the capital stock or in the long-term debt debt, or material increase in short-term debt, of the CompanyNEHC and its subsidiaries, the Guarantor or any of the Subsidiaries taken as a whole, from that set forth in the Offering Memorandum and (iii) except as set forth in the Offering Memorandum; (3) the Company, the Guarantor and the Subsidiaries neither NEUC nor any of its subsidiaries shall have no any liability or obligation, direct or contingent, that is required to be disclosed on a balance sheet in accordance with GAAP and that is not disclosed on the latest balance sheet included in (or otherwise disclosed in) the Offering Memorandum; and (4) the Company, the Guarantor and the Subsidiaries shall have no material liability or obligation, direct or contingent, other than those reflected in the Offering Memorandum.
(d) The Initial Purchasers shall have received certificates of the Company and the Guarantor (satisfactory to the Initial Purchasers and counsel to the Initial Purchasers), dated the Closing Date, executed on behalf of each of the Company and the Guarantor by the President or any Vice President and a principal financial or accounting officer of the Company and the Guarantor, confirming, as of the Closing Date, all matters set forth in Section 9(a), (b), and (c).
(e) The Initial Purchasers shall have received on the Closing Date an opinion (substantially in the following form), dated the Closing Date, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company and the Guarantor, to the effect that:
(i) Each of the Company, the Guarantor and their subsidiaries which are listed on Exhibit A to such opinion and incorporated in Delaware (the "Delaware Subsidiaries") has been duly incorporated and is validly --------------------- existing as a corporation and in good standing under the laws of the State of Delaware. The Company and the Guarantor have the corporate power and authority to execute and deliver the Notes and the Guarantee, respectively, and to enter into and perform their respective obligations under the Operative Documents.
(ii) The execution and delivery by the Company of the Notes, the execution by the Guarantor of the Guarantee and the execution, delivery and performance by the Company and the Guarantor of their respective obligations under each of the Operative Documents do not (a) (i) conflict with the certificate of incorporation or by-laws or other governing documents of the Company, the Guarantor and each of the Delaware Subsidiaries, or (ii) constitute a violation of or default under the terms of any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company, the Guarantor or any of the Subsidiaries which is listed on Exhibit B material to such opinion is a party or bound (except that such counsel need not express an opinion as to any covenant, restriction or provision with respect to financial covenants, ratios or tests or any aspect of the financial condition or results of operations of the Company, the Guarantor or any of the Subsidiaries and such counsel may assume that all such agreements or instruments are governed by the law of New York or Delaware), or (iii) result in any violation of any provision of any Applicable Laws (as hereinafter defined), or (iv) result in a violation of any judgment, order or decree of any court, regulatory body, administrative agency or governmental body or arbitrator (collectively, "Orders") of the United States, the State of New ------ York and the State of Delaware having jurisdiction over the Company, the Guarantor or any of the Subsidiaries or any of their properties or assets. Such counsel's opinion expressed in clause (iv) of this paragraph (e)(ii) may be based on its review of those Orders specifically identified to such counsel by the Company and the Guarantor as being Orders to which they are subject. In addition, such counsel need express no opinion with respect to any federal or state securities or Blue Sky laws or the matters on which opinions are rendered in paragraph (xi) below. "Applicable Laws" shall mean those laws, rules and regulations of the State of New York, the general corporate law of the State of Delaware and of the United States of America which, in such counsel's experience, are normally applicable to transactions of the type contemplated by this Agreement and the other Operative Documents, but without having made any special investigation concerning any other laws, rules or regulations.NEHC;
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The several obligations obligation of the Initial Purchasers to purchase and pay for the Series A Initial Notes under this Agreement are are, in their sole discretion, subject to the satisfaction accuracy, when made and on the Closing Date, of each of the following conditions:
(a) All the representations and warranties of the Company and the Guarantor Subsidiaries contained herein, to the performance by the Company and the Subsidiaries of their obligations hereunder, and to each of the following additional terms and conditions:
a. The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Offering Memorandum contains an untrue statement of a fact which, in the reasonable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, is material or omits to state a fact which, in the opinion of such counsel, is material and is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
b. All of the representations and warranties of the Company and the Subsidiaries contained in this Agreement shall be true and correct on the date hereof and on the Closing Date, Date with the same force and effect as if made on and as of the date hereof and the Closing Date, respectively. The Company and the Guarantor Subsidiaries shall have performed or complied with all of the agreements herein contained and required to be performed or complied with by the Company or the Guarantor on them at or prior to the Closing Date.
(1) c. The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 9:00 a.m., New York City time, on January 30, 1997, the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may approve in writing;
(2) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Series A Notes; and
(3) at the Closing Date, no agree. No stop order preventing the use of the Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of any of the Series A Initial Notes for sale in any jurisdiction designated by the Initial Purchasers pursuant referred to in Section 5(f5(g) hereof shall have been issued and no proceedings proceeding for that purpose shall have been commenced or shall be pending before or, or to the knowledge of the Company or and the Guarantor, be contemplatedSubsidiaries threatened.
(1d. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, have a Material Adverse Effect; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company and the Subsidiaries, threatened against, the Company or any of the Subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; and no stop order shall have been issued by the Commission or any governmental agency of any jurisdiction referred to in Section 5(g) preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect.
e. Since the date hereof or since the dates as of which information is given in the Offering Memorandum and other than as set forth in the Offering Memorandum, (i) there shall has not have been been, singly or in the aggregate, any event that had a Material Adverse Effectmaterial adverse change, or any development involving or which may reasonably be expected to involve, a prospective change that would have a Material Adverse Effectmaterial adverse change, whether or not arising in the ordinary course assets, liabilities, results of business; operation, management, condition (2) since the date financial or other), prospects, properties, business or net worth of the latest balance sheet included in Company, the Offering MemorandumSubsidiaries and the Acquisition Entities, there has not been any change that would have taken as a Material Adverse Effectwhole (each a "MATERIAL ADVERSE CHANGE"), or any development involving a prospective material change that would have a Material Adverse Effect, in the capital stock or in the long-term debt of debt, or material increase in the Companyshort-term debt, the Guarantor or any of the Subsidiaries from that set forth in the Offering Memorandum; (3ii) no dividend or distribution of any kind shall have been declared, paid or made by the Company on any class of its capital stock; (iii) the Company, the Guarantor Subsidiaries and the Subsidiaries Acquisition Entities shall not have no liability incurred any liabilities or obligationobligations, direct or contingent, that is are material, individually or in the aggregate, to the Company, the Subsidiaries and the Acquisition Entities, taken as a whole, and that are required to be disclosed on a balance sheet or notes thereto in accordance with GAAP generally accepted accounting principles and that is are not disclosed on the latest balance sheet or notes thereto included in (or otherwise disclosed in) the Offering Memorandum; and (4) the Company, the Guarantor and the Subsidiaries shall have no material liability or obligation, direct or contingent, other than those reflected in the Offering Memorandum.
(d) f. The Initial Purchasers shall have received certificates of the Company and the Guarantor (satisfactory to the Initial Purchasers and counsel to the Initial Purchasers)a certificate, dated the Closing Date, executed signed on behalf of the Company by (i) ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇, Executive Chairman, (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel, Secretary and Executive Vice President, and (iii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and Chief Financial Officer, in each case of the Company, confirming that (A) such officers, have participated in conferences with other officers and representatives of the Company and the Guarantor by Subsidiaries, representatives of the President or any Vice President and a principal financial or accounting officer independent public accountants of the Company and the GuarantorSubsidiaries and representatives of counsel to the Company and the Subsidiaries at which the contents of the Offering Memorandum and related matters were discussed and (B) the matters set forth in paragraphs (b), confirming, (d) and (e) and the second sentence of paragraph (c) of this Section 7 are true and correct as of the Closing Date.
g. All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Notes, the Subsidiary Guarantees, the Indenture, the Registration Rights Agreement, the Offering Memorandum and all other legal matters set forth relating to this Agreement and the transactions contemplated hereby including, without limitation, the Pending Acquisitions, the Commitment Letter, the New Credit Agreement and the Consent Solicitations, shall be satisfactory in Section 9(a), (b)all material respects to counsel for the Initial Purchasers, and (c)the Company and the Subsidiaries shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(e) The Initial Purchasers shall have received on the Closing Date an opinion (substantially in the following form), dated the Closing Date, of Skadden, Arps, Slate, ▇▇. ▇▇▇▇▇ & ▇▇▇▇ LLP▇▇▇▇▇, counsel for the Company and the GuarantorSubsidiaries, shall have furnished to the Initial Purchasers its written opinion, as counsel to the Company and the Subsidiaries, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) Each of 1. the Company, the Guarantor and their subsidiaries which are listed on Exhibit A to such opinion and incorporated in Delaware (the "Delaware Subsidiaries") has been duly incorporated and Company is validly --------------------- existing as a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company and the Guarantor have the Delaware with full corporate power and authority to execute own, lease and operate its properties and to conduct its business as described in the Offering Memorandum, and is duly registered and qualified to conduct its business and is in good standing, in each jurisdiction or place where the nature of its business requires such registration or qualification, except where the failure to be so qualified would not have a Material Adverse Effect;
2. all of the issued shares of capital stock of the Company have been duly authorized, are validly issued, fully paid and nonassessable;
3. each Subsidiary is a corporation duly organized, validly existing and in good standing in the jurisdiction of its incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum, and is duly registered and qualified to conduct its business and is in good standing, in each jurisdiction or place where the nature of its business requires such registration or qualification, except where the failure to be so qualified would not have a Material Adverse Effect;
4. all of the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of any preemptive or similar rights, and are owned by the Company directly, or indirectly through one of the other Subsidiaries, to such counsel's knowledge, free and clear of any lien, adverse claim, security interest or other encumbrance (except for security interests under the Broadcasting Credit Agreement and the New Credit Agreement);
5. the Company and each of the Guarantors has full corporate power and authority to issue, sell and deliver the Initial Notes to the Initial Purchasers as provided herein and to enter into this Agreement, the Indenture, the Registration Rights Agreement and the other Transaction Documents to which they are a party, to carry out all the terms and provisions hereof and thereof to be carried out by them and to issue, and deliver the Notes and the GuaranteeSubsidiary Guarantees, respectivelyas applicable, as provided herein and to enter into therein;
6. this Agreement has been duly authorized, validly executed and perform their respective obligations under the Operative Documents.
(ii) The execution and delivery by the Company of the Notes, the execution by the Guarantor of the Guarantee and the execution, delivery and performance delivered by the Company and each Subsidiary and constitutes the Guarantor legal, valid and binding agreement of their respective obligations under the Company and each of the Operative Documents do not Subsidiaries (a) assuming it is a legal, valid and binding agreement of the Initial Purchasers), enforceable against the Company and each Subsidiary in accordance with its terms except to the extent that: (i) conflict with the certificate of incorporation or by-laws same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other governing documents laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity; and (ii) rights to indemnity and contribution hereunder may be limited by state or federal securities laws;
7. the execution and delivery of the Registration Rights Agreement have been duly authorized by the Company and each of the Guarantors and the Registration Rights Agreement has been duly executed and delivered by the Company and each of the Guarantors and is the legal, valid and binding agreement of the Company and each Guarantor (assuming it is a legal, valid and binding agreement of the Initial Purchasers), enforceable against the Company and each Guarantor in accordance with its terms except to the extent that: (i) the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity; and (ii) rights to indemnity and contribution hereunder may be limited by state or federal securities laws;
8. the execution and delivery of the Indenture have been duly authorized by the Company and each of the Guarantors and the Indenture has been duly executed and delivered by the Company and each Guarantor and is the legal, valid and binding agreement of the Company and each of the Guarantors (assuming it is a legal, valid and binding agreement of the Trustee), enforceable against the Company and each Guarantor in accordance with its terms except to the extent that: (i) the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity; and (ii) rights to indemnity and contribution hereunder may be limited by state or federal securities laws;
9. the Initial Notes have been duly authorized, executed, issued and delivered by the Company and, assuming due authentication by the Trustee, are legal, valid and binding obligations of the Company, entitled to the Guarantor benefits of the Indenture and enforceable against the Company in accordance with their terms except to the extent that: (i) the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity; and (ii) rights to indemnity and contribution hereunder may be limited by state or federal securities laws;
10. the New Notes have been duly authorized by the Company, and, when duly executed, authenticated, issued and delivered by the Company, will be validly issued and outstanding, and will constitute the legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms except to the extent that: (i) the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity; and (ii) rights to indemnity and contribution hereunder may be limited by state or federal securities laws;
11. the Subsidiary Guarantees endorsed on the Initial Notes have been duly authorized, executed, issued and delivered by the Guarantors and are the legal, valid and binding obligations of each of the Guarantors, entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms except to the extent that: (i) the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity; and (ii) rights to indemnity and contribution hereunder may be limited by state or federal securities laws;
12. the Subsidiary Guarantees to be endorsed on the New Notes have been duly authorized by the Guarantors and, when duly executed, authenticated, issued and delivered by each of the Guarantors and when the New Notes have been duly executed, authenticated, issued and delivered, will be validly issued and outstanding, and will constitute the legal, valid and binding obligations of each of the Guarantors, entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms except to the extent that: (i) the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity; and (ii) rights to indemnity and contribution hereunder may be limited by state or federal securities laws;
13. the execution and delivery of each of the other Transaction Documents to which the Company or any Subsidiary is a party have been duly authorized by the Company and each Subsidiary party thereto and each of such other Transaction Documents which has been executed prior to or on the Delaware SubsidiariesClosing Date has been duly executed and delivered by the Company and each Subsidiary party thereto and is the legal, valid and binding agreement of the Company and each Subsidiary party thereto (assuming it is a legal, valid and binding agreement of the other parties thereto), enforceable against the Company and each Subsidiary party thereto in accordance with its terms except to the extent that: (i) the same may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity whether asserted in an action at law or in equity; and (ii) constitute a violation rights to indemnity and contribution hereunder may be limited by state or federal securities laws;
14. the descriptions of or default the Indenture, the Initial Notes, the Subsidiary Guarantees, the Registration Rights Agreement and the other Transaction Documents in the Offering Memorandum conform in all material respects to the terms thereof;
15. the statements set forth under the terms heading "Description of any indenturethe Notes" in the Offering Memorandum, mortgageinsofar as such statements purport to summarize certain provisions of the Initial Notes, deed provide a fair summary of trustsuch provisions; and the statements in the Offering Memorandum, loan agreement insofar as they are descriptions of contracts, agreements or other agreement legal documents, or instrument refer to statements of law or legal conclusions, are accurate in all material respects and present fairly the information shown;
16. the statements set forth under the heading "Description of Other Debt" in the Offering Memorandum, insofar as such statements purport to summarize certain provisions of the outstanding indebtedness of the Company, provide a fair summary of such provisions;
17. to the best knowledge of such counsel, no legal or governmental proceedings are pending to which the Company, the Guarantor Company or any of the Subsidiaries which is listed on Exhibit B to such opinion is a party or bound (except that such counsel need not express an opinion as to any covenant, restriction or provision with respect to financial covenants, ratios or tests or any aspect of the financial condition or results of operations of the Company, the Guarantor or any of the Subsidiaries and such counsel may assume that all such agreements or instruments are governed by the law of New York or Delaware), or (iii) result in any violation of any provision of any Applicable Laws (as hereinafter defined), or (iv) result in a violation of any judgment, order or decree of any court, regulatory body, administrative agency or governmental body or arbitrator (collectively, "Orders") of the United States, the State of New ------ York and the State of Delaware having jurisdiction over the Company, the Guarantor or any of the Subsidiaries or any of their properties or assets. Such counsel's opinion expressed in clause (iv) of this paragraph (e)(ii) may be based on its review of those Orders specifically identified to such counsel by the Company and the Guarantor as being Orders to which they are subject. In addition, such counsel need express no opinion with respect to any federal or state securities or Blue Sky laws or the matters on which opinions are rendered in paragraph (xi) below. "Applicable Laws" shall mean those laws, rules and regulations of the State of New York, the general corporate law of the State of Delaware and of the United States of America which, in such counsel's experience, are normally applicable to transactions of the type contemplated by this Agreement and the other Operative Documents, but without having made any special investigation concerning any other laws, rules or regulations.
Appears in 1 contract