Conditions of the Initial Purchasers’ Obligations Sample Clauses: 377 Samples

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 4 contracts

Sources: Purchase Agreement (Istar Financial Inc), Purchase Agreement (Istar Financial Inc), Purchase Agreement (Istar Financial Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of ------------------------------------------------- the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) All of the conditions contained in the Credit Agreement to be fulfilled or complied with prior to any borrowing under such agreement (other than the transactions contemplated by this Agreement) shall have been complied with; and the financing for the Recapitalization (other than the offering and sale of the Notes as set forth herein and the application of the proceeds therefrom) shall have been consummated or shall be consummated simultaneously herewith. (b) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇▇▇ ~~Chance US LLP~~& ▇▇▇▇▇, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and ~~scope~~ substance satisfactory to counsel for the Initial ~~Purchasers~~Purchaser substantially in the form set forth on Exhibit A hereto. In rendering such opinion, ~~upon the opinion of~~ ▇▇▇▇▇▇▇▇ ~~LLP. An opinion of ▇▇~~& ▇▇▇▇▇ ~~LLP~~ shall ~~be delivered~~ have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) On the Closing Date, the Initial Purchaser shall have received the opinion, in form and substance satisfactory to the Initial ~~Purchasers~~ Purchaser, dated as of the Closing Date and ~~counsel for~~ addressed to the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions Purchaser, of ~~this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~▇, counsel for the Initial ~~Purchasers, dated the Closing Date~~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, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ~~LLP~~ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (cd) The Initial ~~Purchasers~~ Purchaser shall have received from ~~PricewaterhouseCoopers LLP a letter or~~ the Independent Accountants comfort letters ~~dated, respectively,~~ dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial ~~Purchasers~~Purchaser. (de) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company contained in this Agreement ~~are~~ shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Final Memorandum, there shall have been no event or development that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect. (f) The Recapitalization and the sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date. (g) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct of the business and operations of the Company or any of the Subsidiaries shall not have been interfered with by strike, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of the Company, any of the Subsidiaries shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. (h) The Initial Purchaser shall have received a certificate of the Company, dated the Closing Date, signed by its Chairman of the Board, President or any Senior Vice President and the Chief Financial Officer (in their respective capacities as such), to the effect that, to the best of their knowledge and belief: (i) The representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date~~; and~~; (ii) ~~subsequent to~~ At the ~~respective dates as~~ Closing Date, since the date hereof or since the date of ~~which information is given~~ the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement ~~thereto~~thereto after the date hereof), ~~neither~~ no event or events have occurred, no information has become known nor does any condition exist that, individually or in the ~~Company nor any~~ aggregate, would have a Material Adverse Effect; (iii) The Recapitalization and the sale of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has the Notes hereunder have not been enjoined (temporarily or permanently); and (iv) There have been no material amendments, alterations, modifications or waivers of any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations provisions of the ~~Company or any~~ Recapitalization Agreement and related documents since the date of ~~its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to~~ the execution and delivery ~~of this~~ thereof by the parties thereto; the Company has complied in all material respects with all agreements and covenants in the Recapitalization Agreement and related documents and performed all conditions specified therein required to be complied with or performed by them at or prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (~~f) The Indenture shall have been executed and delivered by all the parties thereto. (g~~i) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (hj) The Initial Purchaser shall have received from the Company a true and correct executed copy of the Credit Agreement, dated on or about the Closing Date, and there shall have been no material amendments, alterations, modifications or waivers of any provisions of the Credit Agreement, and there exists as of the Closing Date (after giving effect to the transactions contemplated by this Agreement and the application of the proceeds received by the Company from the sale of the Notes) no condition that would constitute a Default or an Event of Default (each as defined in the Credit Agreement) under the Credit Agreement. (k) The Initial Purchaser shall have received from the Company a true and correct executed copy of the Recapitalization Agreement, and there shall have been no material amendments, alterations, modifications or waivers of any provisions of the Recapitalization Agreement since the date of this Agreement; all conditions to effect the Acquisition set forth in the Recapitalization Agreement shall have been satisfied. (l) On the Closing Date, the Initial Purchaser shall have received an opinion from ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., in a form reasonably satisfactory to the Initial Purchaser, regarding the solvency of the Company immediately after the consummation of the Recapitalization and the transactions contemplated thereby. On or before the Closing Date, the Initial ~~Purchasers~~ Purchaser and counsel for the Initial ~~Purchasers~~ Purchaser shall have received such further documents, opinions, certificates, ~~documents~~ letters and schedules or ~~other information~~ instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they ~~may~~ shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, ~~letters and documents~~ letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are rea- sonably satisfactory in all material respects to the Initial ~~Purchasers~~ Purchaser and counsel for the Initial ~~Purchasers~~Purchaser. The Company shall furnish to the Initial ~~Purchasers~~ Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and ~~documents~~ instruments in such quantities as the Initial ~~Purchasers~~ Purchaser shall reasonably request.

Appears in 2 contracts

Sources: Purchase Agreement (Therma Wave Inc), Purchase Agreement (Therma Wave Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Representative on behalf of the several Initial Purchasers to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject~~subject to the accuracy, in ~~the Initial Purchasers’ sole discretion~~all material respects, ~~to the accuracy~~ of the representations and warranties of the Company ~~contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~herein, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~performance, ~~to the performance~~ in all material respects, by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Commercial Loans shall have been delivered to the Trustee pursuant to the Sale and Servicing Agreement. (b) The Initial Purchasers shall have received a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company~~certificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that: , to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has ~~no reason~~ complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (~~other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion~~A) the ~~Final Memorandum~~Time of Sale Information, as of ~~its date or~~ the ~~date~~ Time of ~~such opinion~~Sale, ~~included or includes~~ contains any untrue statement of a material fact or ~~omitted~~ omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or any Additional Offering Document contained or contains an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) The Class A-l Notes and the ~~Company and~~ Class A-2 Notes shall each ~~of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ have been ~~duly organized~~ rated no less than “Aaa” by ▇▇▇▇▇’▇, “AAA” by S&P, and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than “Aa2” by ▇▇▇▇▇’▇, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by ▇▇▇▇▇’▇, “A” by S&P and “A” by Fitch, the Class D Notes shall have been rated no less than “Baa2” by ▇▇▇▇▇’▇, “BBB” by S&P and “BBB” by Fitch and the Class E Notes shall have been rated no less than “Baa3” by ▇▇▇▇▇’▇, “BBB-” by S&P and “BBB-” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the ~~Company pursuant~~ date of delivery thereof, in form and substance satisfactory to ~~this Agreement,~~ the ~~compliance by the Company with the other provisions of this Agreement and the consummation~~ Representative on behalf of the ~~other transactions herein contemplated do not (x) require the consent~~Initial Purchasers, ~~approval, authorization, registration or qualification of or~~ with ~~any governmental authority, except such as have been obtained or made (~~respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) ~~commencing with~~ Initial Purchasers shall have received an opinion, dated the ~~Company’s taxable year ended December 31~~Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of ~~operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes~~ in- house counsel to the ~~Initial Purchasers as contemplated by this Agreement~~ Trustee, in form and ~~the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior~~ substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers~~’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the~~ . (f) The Initial Purchasers ~~and the initial resale thereof and (iii) the due performance by the Initial Purchasers~~ shall have received legal opinions of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇Winston & ▇▇▇▇▇▇ LLP~~. An opinion~~ , counsel to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of ~~▇▇▇▇▇▇▇ LLP shall be delivered to~~ the Initial Purchasers and ~~counsel for~~ (ii) with respect to certain “true sale” and “non-consolidation” issues in form and substance satisfactory to the ~~Initial Purchasers covering matters reasonably requested by~~ Representative on behalf of the Initial Purchasers~~. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date~~. (bg) The Initial Purchasers shall have received ~~a legal~~ an opinion ~~from~~ of ▇~~▇▇▇▇▇~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel ~~for~~ to the ~~Initial Purchasers, dated~~ Company and the ~~Closing Date~~Trust Depositor, with respect to certain ~~legal matters relating~~ “perfection issues” in form and substance satisfactory to ~~this Agreement and such other related matters as~~ the Representative on behalf of the Initial Purchasers. (h) The Initial Purchasers ~~may reasonably require. In rendering such opinion,~~ shall have received opinions of ▇▇▇▇▇▇ ▇▇▇▇▇~~▇ & ▇▇▇▇~~▇▇▇ ~~LLP shall have received~~ LLP, counsel to the Owner Trustee and ~~may rely upon such certificates~~ the Trust, with respect to certain trust matters and ~~other documents~~ with respect to certain “perfection issues,” in each case in form and ~~information as it may reasonably request~~ substance satisfactory to ~~pass upon such matters~~the Representative on behalf of the Initial Purchasers. (ci) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and its counsel ~~for the Initial Purchasers. The Company shall furnish to the Initial Purchasers~~ such ~~conformed copies of such opinions~~further information, ~~certificates, letters,~~ certificates and documents ~~in such quantities~~ as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel. (1) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.

Appears in 2 contracts

Sources: Purchase Agreement (NewStar Financial, Inc.), Purchase Agreement (NewStar Financial, Inc.)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Purchased Notes ~~shall,~~ on the Closing Date will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the ~~Initial Purchasers~~ Transaction Documents shall have ~~received~~ been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Business Loans and related Loan Files shall have been delivered to the Indenture Trustee pursuant to the Transfer and Servicing Agreement. (b) The Initial Purchaser shall receive a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company~~certificate, dated the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Executive or Senior Vice President of the Company to the effect that such officer has carefully examined this Agreement, the Memorandum and the Transaction Documents and that: , to the best of such officer’s knowledge (i) since the date information is given in the Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Business Loans except as contemplated by the Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct as of the Closing Date, (iii) the Company has ~~no reason~~ complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than~~ the ~~financial statements~~ Memorandum, and ~~other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum~~any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or ~~the date of such opinion, included or includes~~ any Additional Offering Document contains an untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Class A Notes shall have been ~~duly organized~~ rated no less than “Aaa” by ▇▇▇▇▇’▇ Investors Services, Inc. (“Moody’s”), “AAA” by Standard & Poor’s Ratings Services, a division of The McGraw–Hill Companies, Inc. (“S&P”), and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, Inc. (“Fitch”) and the ~~laws of their~~ Class B Notes shall have been rated no less than “A2” by Moody’s, “A” by S&P, and “A+” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability~~ rating of the Offered Notes have been placed under review. (d) On the date of the Memorandum, Ernst & Young shall have furnished to the ~~Company~~ Initial Purchaser an “agreed upon procedures” letter, dated the date of delivery thereof, in form and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, substance satisfactory to the ~~best knowledge of such counsel~~Initial Purchaser, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to ~~such legal matters, documents~~ certain financial and ~~proceedings~~ statistical information contained in ~~all material respects as would be required to be disclosed in a prospectus pursuant to~~ the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIAMemorandum. (vie) ~~the Notes~~ Initial Purchaser shall have ~~been duly authorized by all necessary corporate action of the Company and~~received an opinion, ~~on and as of~~ dated the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇▇ ~~LLP~~▇. ~~An opinion of~~ ▇▇▇▇▇▇~~▇ LLP shall be delivered~~ ▇, in—house counsel to the ~~Initial Purchasers and counsel for~~ Indenture Trustee, substantially in the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.form attached hereto as Exhibit A. (bf) ~~The~~ Initial ~~Purchasers~~ Purchaser shall have received ~~a legal~~ an opinion ~~from ▇▇▇▇▇▇~~ of ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~, counsel ~~for~~ to the ~~Initial Purchasers~~Company, ~~dated the Closing Date,~~ (i) with respect to certain ~~legal~~ corporate matters ~~relating~~ substantially in the form attached hereto as Exhibit B and (ii) with respect to ~~this Agreement~~ there being no consents required to transfer the business Loans substantially in the form attached hereto as Exhibit C. (g) The Initial Purchaser shall have received opinions of Winston & ▇▇▇▇▇▇, counsel to the Company, the Trust Depositor and ~~such other related matters~~ the Trust, (i) with respect to certain corporate, federal tax, securities law and investment company matters, substantially in the forms attached hereto as Exhibit D and (ii) with respect to certain “true sale,” “non–consolidation” issues and “perfection issues” substantially in the forms attached hereto as Exhibit E. (h) The Initial ~~Purchasers may reasonably require. In rendering such opinion~~Purchaser shall have received opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ~~▇▇▇▇▇▇~~ & ~~▇▇▇▇▇▇▇ LLP shall have received~~ Finger, counsel to the Owner Trustee and ~~may rely upon such certificates~~ the Trust, (i) substantially in the forms attached hereto as Exhibit F, (ii) with respect to certain “trust issues” substantially in the form attached hereto as Exhibit G and ~~other documents and information~~ (iii) with respect to certain “perfection issues” substantially in the forms attached hereto as ~~it may reasonably request to pass upon such matters.~~Exhibit H. (ci) The Initial ~~Purchasers~~ Purchaser shall have received from ~~PricewaterhouseCoopers LLP~~ the Indenture Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Indenture Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchaser shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished ~~or caused to be furnished~~ to the Initial ~~Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ Purchaser and its ~~Chief Financial Officer~~ counsel such further information, certificates and documents as the Initial Purchaser and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial ~~Purchasers~~ Purchaser and its counsel. (l) All documents incident hereto and to the ~~effect that: (i)~~ Transaction Documents shall be reasonably satisfactory in form and substance to the ~~representations~~ Initial Purchaser and ~~warranties~~ its counsel, and the Initial Purchaser and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the ~~Company~~ conditions specified in this ~~Agreement are true and correct as if made on~~ Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the ~~Closing Date;~~ opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the ~~Company has performed~~ Initial Purchaser, this Agreement and all ~~covenants and agreements and satisfied all conditions on its part to~~ of the Initial Purchaser’s obligations hereunder may be ~~performed or satisfied~~ canceled by the Initial Purchaser at or prior to delivery of and payment for the ~~Closing Date; and (ii) subsequent~~ Purchased Notes. Notice of such cancellation shall be given to the ~~respective dates as of which information is given~~ Company in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancewriting, or ~~from any labor dispute~~ by telephone or ~~any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change~~ telecopy confirmed in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)writing. (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (American Capital Strategies LTD)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers to purchase and pay for the Senior Subordinated Notes ~~shall~~as provided herein, shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the ~~accuracy~~ satisfaction of each of the following conditions: (a) All the representations and warranties of the Company and the Subsidiary Guarantors contained ~~herein as of~~ in this Agreement shall be true and correct on the ~~date hereof and as of each~~ Closing Date, with the same force and effect as if made on and as of ~~each Closing Date, to~~ the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants~~ date hereof and ~~agreements hereunder and to the following additional conditions: (a) On~~ the Closing Date, respectively. Each of the Company and the Subsidiary Guarantors shall have performed or complied with its obligations and agreements and satisfied the conditions to be performed, complied with or satisfied by it on or prior to the Closing Date. (1) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 9:00 a.m., New York City time, on the day following the date of this Agreement, or at such later date and time as to which the Initial Purchasers may approve; (2) No action shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~been taken and no statute, ~~counsel for the Company~~rule, ~~dated~~ regulation or order shall have been enacted, adopted or issued by any governmental agency that would, as of the Closing Date, prevent the issuance of the Senior Subordinated Notes or the Note Guarantees; (3) No injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date or, to the ~~effect that:~~best knowledge of the Company, threatened against, the Company or the Subsidiary Guarantors which would prevent the issuance of the Senior Subordinated Notes or the Note Guarantors; and (4) No stop order preventing the use of the Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of the Senior Subordinated Notes for sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(f) hereof shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending, threatened or, to the Company's knowledge contemplated. (c) (1) (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or Since the date of ~~such opinion~~the latest balance sheet in the Offering Memorandum, ~~included or includes any untrue statement of a material fact or omitted or omits to state~~ there shall not have been any material ~~fact necessary in order to make the statements therein~~adverse change, or any development involving a prospective material adverse change, in the ~~light~~ assets, properties, business, results of operations, condition (financial or otherwise) or prospects, whether or not arising in the ~~circumstances under which they were made~~ordinary course of business, ~~not misleading. (ii) the Company and each~~ of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; , (ii) since the date of the latest balance sheet included in the Offering Memorandum, there shall not have been any material change, or any development that is reasonably likely to result in a material change, in the capital stock or in the long-term debt, or material increase in short-term debt, of the Company and ~~each of~~ its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, ~~except~~ taken as ~~otherwise~~ a whole, from that set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) ~~the due performance by the Initial Purchasers of the agreements~~ except as set forth in ~~Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to~~ the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum, neither the Company nor any of its subsidiaries ~~has sustained~~ shall have any liability or obligation, direct or contingent, which is material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.;

Appears in 1 contract

Sources: Purchase Agreement (Standard Parking Ii LLC)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ ~~Chance US LLP~~& ▇▇▇▇, counsel for the Company, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, substantially to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have been duly organized and are~~ material Subsidiaries is incorporated, validly existing ~~as corporations~~ and in good standing under the laws of ~~their~~ its respective ~~jurisdictions~~ jurisdiction of incorporation and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the Final Memorandum, . Each of the Company and the ~~Company has corporate power~~ material Subsidiaries is duly qualified as a foreign corporation and is in good standing in the jurisdictions set forth below such Subsidiaries' name on Schedule A attached to ~~enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and~~ such opinion. (ii) All of the ~~Notes to be carried out by it; all of the issued and~~ outstanding shares of capital stock of ~~each~~ the Company and the material Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; all of the outstanding shares of capital stock of the material Subsidiaries are owned, directly or indirectly, by the Company~~’s significant subsidiaries~~, ~~except~~ free and clear of all security interests perfected, or otherwise, and free and clear of all other liens, encumbrances, equities and claims or restrictions on transferability or voting. (iii) Except as ~~otherwise~~ set forth in the Final Memorandum, ~~are owned beneficially by the Company free and clear of any perfected security interests or,~~ to the ~~best~~ knowledge of such counsel, (A) no options, warrants or other rights to purchase from the Company or any ~~other security interests, liens, encumbrances, equities~~ Subsidiary shares of capital stock or ~~claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes”~~ ownership interests in the ~~Final Memorandum~~Company or any Subsidiary are outstanding, ~~insofar as such statements purport to summarize certain provisions~~ (B) no agreements or other obligations of the ~~Notes and~~ Company or any Subsidiary to issue, or other rights to cause the ~~Indenture~~Company or any Subsidiary to convert, ~~provide a fair summary~~ any obligation into, or exchange any securities for, shares of ~~such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences”~~ capital stock or ownership interests in the ~~Final Memorandum, insofar as such statements constitute a summary~~ Company or any Subsidiary are outstanding and (C) no holder of securities of the ~~legal matters, documents~~ Company or ~~proceedings referred~~ any Subsidiary is entitled to ~~therein,~~ have ~~been reviewed~~ such securities registered under a registration statement filed by ~~such counsel and fairly present~~ the ~~information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus~~ Company or the Subsidiaries pursuant to the ~~Act and the Exchange Act and the respective rules and regulations thereunder;~~Registration Rights Agreement. (iv) The Company has all requisite corporate power and authority to execute, deliver and perform its respective obligations under the ~~execution and delivery of this Agreement have been duly authorized by all necessary corporate action of~~ Indenture, the ~~Company~~ Notes, the Exchange Notes and the ~~Agreement~~ Private Exchange Notes; the Indenture is in sufficient form for qualification under the TIA; the Indenture has been duly ~~executed~~ and ~~delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and~~validly authorized, ~~when duly~~ executed and delivered by the Company and (assuming the due authorization, execution and delivery thereof by the Trustee), ) constitutes the ~~Indenture will be a legal,~~ valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency, moratorium~~ or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights ~~generally from time~~ generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought, (iii) the extent that a waiver of rights under any usury laws may be unenforceable and (iv) limitations on rights to ~~time in effect). The Indenture meets~~ indemnity and contribution under federal or state securities laws or the ~~requirements for qualification under the TIA~~public policy underlying such laws. (viv) The Global Note (as such term is defined in the ~~Notes have~~ Indenture) is in the form contemplated by the Indenture. The Global Note has been duly ~~authorized by all necessary corporate action of the Company and~~and validly authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company ~~and~~and (assuming the due authorization, ~~assuming due authentication~~ execution and delivery of the Indenture by the Trustee, ~~will be~~ the ~~legal,~~ due authentication and delivery of the Notes by the Trustee in accordance with the Indenture and the payment therefor by the Initial Purchaser in accordance with the terms of this Agreement) constitutes the valid and legally binding ~~obligations~~ obligation of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder~~ , and enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization or other similar laws now or hereafter in effect relating to creditors' rights generally, (ii) general principles of ~~securities~~ equity and the discretion of the ~~Company has~~ court before which any ~~right which has not been fully exercised~~ proceeding therefor may be brought, (iii) the extent that a waiver of rights under any usury laws may be unenforceable and (iv) limitations on rights to indemnity and contribution under federal or ~~waived to require~~ state securities laws or the ~~Company to register the offer or sale of any securities owned by~~ public policy underlying such ~~holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;~~laws. (~~vii~~vi) ~~the~~ The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes ~~are~~ have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and the due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy~~, reorganization~~, insolvency, ~~moratorium~~ reorganization or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights ~~generally from time~~ generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought, (iii) the extent that a waiver of rights under any usury laws may be unenforceable and (iv) limitations on rights to ~~time in effect)~~indemnity and contribution under federal or state securities laws or the public policy underlying such laws. (~~viii~~vii) ~~the~~ The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by the Company and (assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers), will be a legal,~~ Purchaser) constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy~~, reorganization~~, insolvency, ~~moratorium~~ reorganization or other similar laws ~~affecting creditors’ rights generally from time to time~~ now or hereafter in effect relating to creditors' rights generally, (ii) general principles of equity and ~~except~~ the discretion of the court before which any proceeding therefor may be brought, (iii) the extent that a waiver of rights under any usury laws may be unenforceable and (iv) limitations on rights to indemnity and contribution under federal or ~~contribution thereunder may be limited by federal and~~ state securities laws ~~and~~ or the public policy ~~considerations~~underlying such laws. (viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby (including the Acquisition); this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company. This Agreement has been duly executed and delivered by the Company. (ix) ~~the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement~~The Indenture, the ~~Registration Rights Agreement~~Notes (when issued, ~~the Indenture~~ authenticated and ~~the Notes~~delivered), the Exchange Notes (when issued, authenticated and delivered) and the ~~Private Exchange Notes~~Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum. (x) No legal or governmental proceedings are pending or, to the ~~issuance~~knowledge of such counsel, ~~offering and~~ threatened to which any of the Company or the material Subsidiaries is a party or to which the property or assets of the Company or the material Subsidiaries is subject which, if determined adversely to the Company or such material Subsidiaries, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the ~~Initial Purchasers by~~ consummation of the other transactions described in the Final Memorandum under the caption "Use of Proceeds." (xi) None of the Company ~~pursuant~~ or any material Subsidiary is (i) in violation of its certificate of incorporation or bylaws (or similar organizational document) or (ii) to the knowledge of such counsel, in breach or violation of any judgment, decree or order applicable to any of them or any of their respective properties or assets. (xii) The execution and delivery of this Agreement, the ~~compliance by~~ Indenture, the ~~Company with the other provisions of this~~ Registration Rights Agreement and the consummation of the ~~other~~ transactions ~~herein~~ contemplated do hereby and thereby (including the Acquisition) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms ~~and~~ or provisions ~~of, or constitute a default under,~~ of any ~~indenture, mortgage, deed of trust, lease or other material agreement or instrument,~~ Contract known to such counsel, ~~to which~~ (ii) the ~~Company~~ certificate of incorporation or ~~any of its significant subsidiaries is a party~~ bylaws (or ~~by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws~~ similar organizational document) of the Company or any ~~of its significant subsidiaries~~material Subsidiary, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof) any ~~statute or any~~ statute, judgment, decree, order, rule or regulation which, in such counsel's experience, is normally applicable both to general business corporations which are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum. (xiii) No consent, approval, authorization or order of any ~~court or other~~ governmental authority ~~or any arbitrator known to such counsel~~ is required for the issuance and ~~applicable to~~ sale by the Company ~~or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering~~ of the Notes ~~and~~ to the ~~application of~~ Initial Purchaser or the ~~proceeds therefrom~~other transactions contemplated hereby (including the Acquisition), ~~will not~~ except such as are disclosed in the Final Memorandum or as may be ~~an “investment company”~~required under Blue Sky laws, as to which such ~~term is defined in the 1940 Act; and~~counsel need express no opinion, and those which have previously been obtained. (xixiv) ~~such counsel does not know of any~~ There are no legal or governmental proceedings ~~pending~~ involving or ~~threatened to which~~ affecting the Company or ~~any of its subsidiaries is a party or to which~~ the ~~property of the Company~~ Subsidiaries or any of ~~its subsidiaries is subject that~~ their respective properties or assets which would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or nor are there any ~~statutes, regulations,~~ material contracts or other documents ~~that~~ which would be required to be described in a prospectus pursuant to the Act that are not described ~~or incorporated~~ in the Final Memorandum. (~~xii~~xv) ~~commencing with the Company’s taxable year ended December 31, 1998,~~ None of the Company ~~was organized~~ or the Subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and ~~has operated~~ the application of the proceeds from such sale (as described in ~~conformity with~~ the ~~requirements for qualification as a real estate investment trust (“REIT”)~~ Final Memorandum under the ~~Code~~caption "Use of Proceeds") will be, ~~and~~ an "investment company" as such term is defined in the ~~Company’s present and proposed method~~ Investment Company Act of ~~operation~~1940, as ~~represented by the Company, will permit the Company to continue to so qualify~~amended. (~~xiii~~xvi) No registration of the Notes under the Act ~~of the Notes~~ is required in connection with the sale of the Notes to the Initial ~~Purchasers~~ Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer ~~(as defined in the Registration Rights Agreement)~~ or the effectiveness of the Shelf Registration ~~Statement (as defined in the Registration Rights Agreement)~~Statement, the Indenture is not required to be qualified under the TIA, in each case assuming (i) ~~(A)~~ that the purchasers who buy such Notes in the initial resale thereof are (A) qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”"), (B) accredited investors as defined in Rule 501(a) (1), (2), (3) or (B7) ~~that~~ promulgated under the ~~offer~~ Act ("Accredited Investors"), or ~~sale~~ (C) not "U.S. persons" or purchasing for the account or benefit of ~~the Notes is made in an offshore transaction~~ "U.S. persons" as defined in Regulation S, and are purchasing Notes in offshore transactions in accordance with Regulation S, (ii) the accuracy of the Initial ~~Purchasers’~~ Purchaser's representations in Section 8 hereof and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial ~~Purchasers~~ Purchaser and the initial resale thereof and (iii) the due performance by the Initial ~~Purchasers~~ Purchaser of the agreements set forth in Section 8 hereof. (xvii) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Notes will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. (xviii) The Company had all requisite corporate power and authority to execute and deliver, and has all requisite corporate power and authority to perform its obligations under, the Asset Purchase Agreement. ~~In rendering any such opinion~~The Asset Purchase Agreement has been duly and validly authorized, ~~such counsel may rely, as to matters of fact~~executed and delivered by the Company and, to the ~~extent~~ knowledge of such ~~counsel deems proper~~counsel, ~~on certificates of responsible officers~~ the other parties thereto, and constitutes the valid and legally binding agreement of the Company ~~and public officials~~ and~~, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware~~, to the ~~extent satisfactory in form and scope to counsel for~~ knowledge of such counsel, the ~~Initial Purchasers~~other parties thereto, ~~upon~~ enforceable against the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared Company in accordance with its terms, except that the ~~provisions~~ enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization or other similar laws now or hereafter in effect relating to creditors' rights generally, (ii) general principles of ~~this Agreement at~~ equity and the ~~Closing Date~~discretion of the court before which any proceeding therefor may be brought, (iii) the extent that a waiver of rights under any usury laws may be unenforceable and (iv) limitations on rights to indemnity and contribution under federal or state securities laws or the public policy underlying such laws. (bxx) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given statements contained in the Final Memorandum ~~(exclusive~~ under the caption "Certain U.S. Federal Tax Considerations," insofar as such statements purport to summarize certain federal income tax laws of ~~any amendment or supplement thereto)~~the United States, ~~neither~~ constitute a fair summary of the ~~Company nor any~~ principal U.S. federal income tax consequences of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, an investment in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)Notes. (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (Anacomp Inc)

Appears in 1 contract

Sources: Purchase Agreement (Verio Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser hereunder are subject to ~~purchase~~ the accuracy of the representations and ~~pay~~ warranties on the part of the Company on the date hereof and at the Closing Time, the performance by the Company of its obligations hereunder and to the following conditions: (a) The Company shall furnish to the Initial Purchaser at the Closing Time an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the ~~Notes shall~~Company, ~~be subject~~addressed to the Initial Purchaser and dated the Closing Time and in form reasonably satisfactory to the Initial Purchaser, stating that: (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its state of incorporation with full corporate power and authority to own its properties and to conduct its business (including the business of Saxon upon consummation of the Saxon Acquisition) and to execute and deliver this Agreement, the Warrant Agreement, the Warrants and the Registration Rights Agreement and to issue the Shares and the Warrant Shares; (ii) the Company is duly qualified or licensed by and is in good standing in each jurisdiction in which the character or location of its assets or properties or the nature of its business makes such qualification necessary and in which the failure, individually or in the ~~Initial Purchasers’ sole discretion~~aggregate, to be so licensed or qualified could have a material adverse effect on the operations, business or condition of the Company; (iii) this Agreement has been duly authorized, executed and delivered by the Company; (iv) each of the Warrant Agreement, the Warrants and the Registration Rights Agreement has been duly authorized, executed and delivered by the Company, and, assuming due authorization, execution and delivery by the Initial Purchaser, is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity, and except to the extent that the indemnification provisions therein may be limited by federal or state securities laws and public policy considerations in respect thereof; (v) the Shares and the Warrant Shares have been duly authorized by the Company and, upon payment therefor and delivery in accordance with this Agreement or the Warrant Agreement, will be validly issued, fully paid and non-assessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, and the issuance and sale of the Shares and the Warrant Shares by the Company is not subject to preemptive or other similar rights arising by operation of law, under the certificate of incorporation or by-laws of the Company, or under any agreement known to us to which the Company or any of subsidiary is a party or otherwise; (vi) the Company has an authorized capitalization as set forth in the Final Memorandum; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and free of pre-emptive rights; the Company has reserved and kept available for issuance upon exercise of the Warrants, such number of authorized but unissued shares of Common Stock as are sufficient to permit the exercise in full of the Warrants; all of the issued and outstanding shares of capital stock of Saxon are, upon consummation of the Saxon Acquisition, owned by the Company, free and clear of any adverse claims, and, to the best of such counsel's knowledge, the Company has no subsidiaries other than Saxon and Saxon's subsidiaries; (vii) the Shares, the Warrants and Warrant Shares, the Warrant Agreement and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum; (viii) the statements under the captions "Management - Executive Compensation" (only with respect to the employment agreements described therein), "Management - Stock Plan", "Management - Indemnification and Limitation on Liability; Insurance", "U.S. Federal Tax Considerations for Non-U.S. Holders" and "Description of Capital Stock" in the Final Memorandum, insofar as such statements constitute a summary of the legal matters or documents referred to therein, constitute accurate summaries thereof in all material respects and accurately present the information called for with respect to such matters or documents; (ix) assuming (i) the accuracy of the representations and warranties of the Company ~~contained herein~~ and the Initial Purchaser set forth in this Agreement and (ii) that the purchasers who buy the Shares in Exempt Resales are either QIBs (or persons who the Initial Purchaser reasonably believes are QIBs), Regulation S Purchasers or Accredited Investors, the sale of the Shares to the Initial Purchaser as contemplated hereby and the Exempt Resales are exempt from the registration requirements of the Securities Act; (x) to such counsel's knowledge, the Company and its affiliates and any person acting on behalf of the Company or its affiliates (other than the Initial Purchaser as to which such counsel need express no opinion) have complied with the offering restrictions requirement of Regulation S; (xi) the Shares satisfy the requirements set forth in Rule 144A(d)(3) under the Securities Act; (xii) as of the date ~~hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy~~ of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing DateFinal Memorandum, the ~~Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date,~~ Final Memorandum (except as to ~~the effect that: (i) such counsel has no reason to believe that (other than~~ the financial statements and other financial ~~information~~ and statistical data contained therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act Regulations for prospectuses included in registration statements on Form S-1; (xiii) assuming (i) the accuracy of the representations and warranties of the Company and the Initial Purchaser set forth in this Agreement and (ii) that the purchasers who buy the Shares in Exempt Resales are either QIBs (or persons who the Initial Purchaser reasonably believes are QIBs), Regulation S Purchasers or Accredited Investors, no approval, authorization, consent or order of or filing with any federal, or to such counsel's knowledge, state or local governmental or regulatory commission, board, body, authority or agency is required in connection with the transactions contemplated by this Agreement, the Warrant Agreement, the Warrants and the Registration Rights Agreement and the issuance of the Shares and the Warrant Shares as contemplated hereby or thereby other than such as have been obtained or made and other than the filing of a Form D with the Commission and except that such counsel need express no opinion as to (i) any necessary qualification under the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Initial Purchaser or (ii) any approval, authorization, consent or order necessary by any federal or state securities regulatory authorities in connection with or pursuant to the Registration Rights Agreement, including without limitation the filing of the registration statement(s) required thereby with the Commission; (xiv) the execution, delivery and performance of this Agreement, the Warrant Agreement, the Warrants and the Registration Rights Agreement and the issuance of the Shares and the Warrant Shares by the Company and the consummation by the Company of the transactions contemplated hereby and thereby do not and will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of or default under), (i) any provisions of the certificate of incorporation or by-laws of the Company, (ii) any provision of any material license, indenture, mortgage, deed of trust, bank loan, credit agreement or other agreement or instrument known to such counsel to which the Company, Saxon or any subsidiary is a party or by which it or its properties may be bound or affected, or (iii) the Securities Act or the rules and regulations of the Commission or any other federal law or any decree, judgment, permit or order applicable to the Company, Saxon or any subsidiary, except in the case of clause (ii) for such conflicts, breaches or defaults which have been waived or which individually or in the aggregate would not have a material adverse effect on the operations, business or condition of the Company; (xv) to such counsel's knowledge, there are no contracts, licenses, agreements, leases or documents of a character which are required to be summarized or described in the Final Memorandum which have not been so summarized or described; (xvi) to such counsel's knowledge, there are no actions, suits or proceedings pending or threatened against the Company, Saxon or any subsidiary or any of their properties, at law or in equity or before or by any commission, board, body, authority or agency which are required to be described in the Final Memorandum but are not so described; (xvii) the form of certificate used to evidence the Shares complies in all material respects with all applicable statutory requirements and with any applicable requirements of the certificate of incorporation and by-laws of the Company; (xviii) to the best of such counsel's knowledge, there are no persons with registration or other similar rights to have any securities registered by the Company under the Securities Act, other than pursuant to the Registration Rights Agreement; and (xix) the Company is not, and will not become upon and as a result of the sale of the Shares and the Warrant Shares and the application of the net proceeds therefrom as described in the Final Memorandum under the caption "Use of Proceeds", an "investment company" or an entity "controlled" by an "investment company", as such terms are defined in the 1940 Act. Such opinion shall address matters under the laws of the Commonwealth of Virginia and, to the extent relevant, the State of Delaware and under the laws of the United States. Counsel shall be entitled to rely on the opinion of Saxon's General Counsel on all matters governed by the laws of the Commonwealth of Virginia. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company and Saxon, representatives of the independent public accountants of the Company and Saxon and representatives of the Initial Purchaser at which the contents of the Preliminary Memorandum and the Final Memorandum were discussed and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Preliminary Memorandum or the Final Memorandum (except as and to the extent stated in subparagraphs (vii) and (viii) above), on the basis of the foregoing nothing has come to the attention of such counsel that causes them to believe that either the Preliminary Memorandum or the Final Memorandum, in each case as amended or supplemented as of its date and as of the Closing Time, contained or ~~the date of such opinion, included or includes any~~ contains an untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading~~misleading (it being understood that, in each case, such counsel need express no view with respect to the financial statements and other financial and statistical data included in the Preliminary Memorandum or the Final Memorandum). (iib) Saxon shall furnish to the ~~Company and each~~ Initial Purchaser at the Closing Time an opinion of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability General Counsel, addressed to the ~~Company~~ Initial Purchaser and ~~its subsidiaries~~dated the Closing Time and in form reasonably satisfactory to the Initial Purchaser, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; stating that: (i) all of the issued and outstanding shares of capital stock of Saxon and its subsidiaries have been duly and validly authorized and issued and are fully paid and non-assessable and free of pre-emptive rights; (ii) Saxon and each of its subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the ~~Company’s significant subsidiaries~~laws of the jurisdiction of incorporation with full corporate power and authority to own its properties and to conduct its business; Saxon and each of its subsidiaries is duly qualified or licensed by and is in good standing in each jurisdiction in which the character or location of its assets or properties or the nature of its business makes such qualification necessary and in which the failure, ~~except as otherwise set forth~~ individually or in the ~~Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or~~aggregate, to be so licensed or qualified could have a material adverse effect on the ~~best knowledge~~ operations, business or condition of ~~such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments~~Saxon; (iii) the ~~statements set forth~~ execution, delivery and performance of this Agreement, the Warrant Agreement, the Warrants and the Registration Rights Agreement and the issuance of the Shares and the Warrant Shares by the Company and the consummation by the Company of the transactions contemplated hereby and thereby do not and will not conflict with, or result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time, or both would constitute a breach of or default under), (i) any provisions of the ~~heading “Description~~ certificate of ~~Notes”~~ incorporation or by-laws of Saxon or any subsidiary or (ii) any federal law or any decree, judgment, permit or order applicable to Saxon or any subsidiary pertaining to consumer lending; (iv) Saxon and each subsidiary own or possess such licenses or other rights to use all material Intangibles as are necessary to entitle Saxon and the subsidiaries to conduct its business as currently conducted as described in the Final Memorandum, ~~insofar as~~ and to such ~~statements purport~~ counsel's knowledge, none of Saxon or any subsidiary has received written notice of infringement of or conflict with asserted rights of others with respect to ~~summarize certain provisions~~ any material Intangibles which could have a material adverse effect on the business, operations, property or condition of the ~~Notes~~ Company, Saxon and ~~the Indenture, provide a fair summary of such provisions~~each subsidiary; ~~and~~ and (v) the statements ~~set forth~~ under the ~~heading “Certain Federal Income Tax Consequences”~~ caption "Business - Regulation" in the Final Memorandum, insofar as such statements constitute a summary of the legal ~~matters, documents or proceedings~~ matters referred to therein, ~~have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings~~ constitute accurate summaries thereof in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIArespects. (vic) ~~the Notes~~ The Initial Purchaser shall have ~~been duly authorized by all necessary corporate action of the Company and~~received from Deloitte & Touche LLP, ~~on and~~ letters dated, respectively, as of the ~~Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations~~ date of the ~~Company~~Preliminary Memorandum, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the ~~consummation of~~ Closing Time and addressed to the ~~other transactions herein contemplated do not (x) require~~ Initial Purchaser in the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes forms heretofore approved by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final MemorandumPurchaser. (~~xii~~d) ~~commencing with~~ The Initial Purchaser shall have received at the ~~Company’s taxable year ended December 31, 1998,~~ Closing Time the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the favorable opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial ~~Purchasers~~Purchaser, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing DateTime, in form and substance satisfactory to ~~counsel for~~ the Initial ~~Purchasers~~Purchaser. (de) ~~The Company shall have furnished or caused to be furnished~~ Prior to the ~~Initial Purchasers at the~~ Closing ~~a certificate of its Chairman of the Board~~Time, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:~~ (i) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes, shall have occurred and (ii) the Final Memorandum and all amendments or supplements thereto, or modifications thereof, if any, shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading. (f) Between the time of execution of this Agreement and the Closing Time, (i) no material adverse change, financial or otherwise (other than as disclosed in the Final Memorandum), in the operations, business, condition, prospects or property of the Company, Saxon or any subsidiary shall occur or become known, (ii) no transaction which is material and unfavorable to the Company or Saxon shall have been entered into by the Company, Saxon or any subsidiary and (iii) no order, decree or stop order preventing the use of the Final Memorandum, or any amendment or supplement thereto or any order asserting that any of the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act shall have been issued. (g) The representations and warranties of the Company set forth in this Agreement and the conditions set forth in paragraph (e) and paragraph (f) have been met and are true and correct as ~~if made on and as~~ of the Closing ~~Date;~~ Time, and the Company ~~has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied~~ will, at ~~or prior to~~ the Closing ~~Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)~~Time, neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.delive

Appears in 1 contract

Sources: Purchase Agreement (Saxon Capital Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the ~~Initial Purchasers~~ Transaction Documents shall have ~~received~~ been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Business Loans shall have been delivered to the Indenture Trustee pursuant to the Sale and Servicing Agreement. (b) The Initial Purchaser shall receive a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company~~certificate, dated the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Executive or Senior Vice President of the Company to the effect that such officer has carefully examined this Agreement, the Memorandum and the Transaction Documents and that: , to the best of such officer's knowledge (i) since the date information is given in the Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Business Loans except as contemplated by the Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company and Funding set forth herein and in the Transaction Documents are true and correct in all material respects as of the Closing Date, (iii) the Company has ~~no reason~~ complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, and (iv) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum,~~ Memorandum as of its date and as of the Closing Date, or ~~the date of such opinion, included or includes~~ any Additional Offering Document contains an untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Class A Notes shall have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiariesrated no less than "Aaa" by Moody's Investors Services, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; Inc. (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee"Moody's"), ~~the Indenture will be~~ "AAA" by Standard & Poor's Ratings Services, a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇~~▇ LLP~~▇n of The McGraw-Hill Companies, Inc. ("S&P"), and "AAA" by Fitch, I▇▇. ~~An opinion of~~ ("▇▇▇▇▇~~▇▇ LLP shall be delivered to~~ ") and the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers Class B Notes shall have ~~received a legal opinion from ▇▇▇~~been rated no less than "A2" by Moody's, "A" by S&P, and "A" by Fitch, such ratings shall ▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceedinge been rescinded, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture no public announcement shall have been ~~executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed~~ made by the ~~Company and such agreement shall be in full force and effect at all times from and after~~ respective rating agencies that the ~~Closing Date~~rating of the Offered Notes have been placed under review. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (MCG Capital Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase and pay for the ~~Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ Securities are subject to the ~~accuracy~~ continued accuracy, as of the Closing Time, of the representations and warranties of the ~~Company contained~~ Issuers herein ~~as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~contained, to the accuracy of the statements of the ~~Company’s~~ Issuers and officers of the Issuers made in any certificate pursuant to the provisions hereof, to the performance by the ~~Company~~ Issuers of ~~its covenants and agreements hereunder~~ their respective obligations hereunder, and to the following ~~additional~~ further conditions: (a) On At the Closing ~~Date~~Time, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinions of each of Bria▇ ▇. ▇▇▇▇▇▇, ▇▇ecutive Vice President of Law and General Counsel of the Company, Somm▇▇ ~~Chance US~~ & ▇arn▇▇▇, ▇▇, and Alst▇▇ & Bird LLP, each dated as of the Closing Time, which, collectively, are in the form set forth below and otherwise reasonably satisfactory to the Initial Purchasers and counsel for the ~~Company, dated the Closing Date~~Initial Purchasers, to the effect that: (i1) The Company and each of the Guarantors has been duly organized or incorporated, as the case may be, and is validly existing under the laws of its respective state of incorporation, with corporate power and authority to own, lease and operate its assets and properties and conduct its business as described in the Offering Memorandum and to enter into and perform its obligations under this Agreement and each of the other Operative Documents; the Company and each of the Guarantors is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it conducts its business (based on certificates of officers of the Company) and such ~~counsel~~ qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; (2) Each of the Issuers has ~~no reason~~ the requisite corporate or partnership power and authority to ~~believe that~~ own, lease and operate its assets and properties and to conduct its business as described in the Offering Memorandum. Each of the Issuers has the requisite corporate or partnership power and authority to execute, deliver and perform its obligations under the Operative Documents to which it is or is to be a party. Each of the Operative Documents has been duly authorized by each Issuer which is a party thereto; (3) No consent, waiver, approval, authorization, license, qualification or order of or filing or registration with, any court or governmental or regulatory agency or body is required for the execution and delivery by the Issuers of this Agreement, the Registration Rights Agreement or the Indenture or for the issue and sale of the Securities, the Exchange Securities or the Private Exchange Securities (other than with respect to the ~~financial statements~~ delivery in book-entry form), if any, or the issuance of the Guarantees by the Guarantors, the performance by the Issuers of their obligations under the Operative Documents, or for the consummation of any of the transactions contemplated hereby or thereby, except, such as may be required (A) in connection with the registration under the Act of the Exchange Securities or the Private Exchange Securities, if any, pursuant to the Registration Rights Agreement (including any filing with the NASD), (B) in connection with the registration under the Act of the Exchange Securities or the Private Exchange Securities pursuant to the Registration Rights Agreement, the qualification of the Indenture under the Trust Indenture Act and ~~other financial information contained therein,~~ (C) under the "blue sky" laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Initial Purchasers (as to which such counsel need express no opinion); (4) The issuance, sale and delivery of the Securities, the Exchange Securities and the Private Exchange Securities (other than with respect to the delivery in book-entry form), if any, the execution, delivery and performance by the Issuers of this Agreement, the Registration Rights Agreement and the Indenture (in each case assuming due authorization and execution by each party other than the Company), and the consummation by the Issuers of the transactions contemplated hereby and thereby and the compliance by the Issuers with the terms of the foregoing do not, and, at the Closing Time, will not conflict with or constitute or result in a breach or violation by the Company or any of the Guarantors of (A) any provision of the Certificate of Incorporation or By-laws of the Company or such Guarantors, (B) any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) by the Issuers, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuers under any material Contract known to such counsel or (C) any law, statute, rule, or regulation or any order, decree or judgment known to such counsel to be applicable to the Issuers, of any court or governmental or regulatory agency or body or arbitrator known to such counsel to have jurisdiction over the Issuers or any of their respective properties or assets; (5) The Purchase Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors; (6) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors and assuming the due execution and delivery thereof by the Initial Purchasers, constitutes a valid and binding obligation of each of the Issuers; (7) The Indenture has been duly authorized, executed and delivered by the Company and each of the Guarantors and, assuming the due execution and delivery thereof by the Trustee, constitutes a valid and binding obligation of each of the Issuers; (8) The Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered and paid for in accordance with the terms of this Agreement, and the Exchange Securities and the Private Exchange Securities (other than with respect to the delivery in book-entry form), if any, when executed, authenticated and delivered in exchange for the Securities in accordance with the terms of the Registration Rights Agreement, will be entitled to the benefits of the Indenture and will constitute valid and binding obligations of the Company; (9) the ~~Final~~ Guarantees have been duly authorized by the Guarantors and when executed and delivered by the Guarantors in accordance with the provisions of the Indenture (assuming the due authentication of the Notes by the Trustee) will be entitled to the benefits of the Indenture and will be valid and binding obligations of each of the Guarantors; (10) To the knowledge of such counsel, other than as described in the Offering Memorandum, no legal, regulatory or governmental proceedings are pending or threatened to which the Company or any of the Subsidiaries is a party or to which the property or assets of the Company or any of the Subsidiaries are subject which in the judgment of the Company could reasonably be expected to have a Material Adverse Effect; (11) The descriptions of the Notes, the Guarantees, the Indenture and the Registration Rights Agreement contained in the Offering Memorandum fairly describe or summarize such documents in all material respects; (12) Neither the Company nor any of the Subsidiaries is in violation of its respective Organizational Documents; provided, that with respect to the business purpose clauses of the charter of the Company and its Subsidiaries, such opinion may be limited to the knowledge of such counsel after due inquiry; to the knowledge of such counsel, no default by the Company or any of the Guarantors exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any Contract; and to the knowledge of such counsel, none of the Issuers is in breach or violation of any law, statute, rule or regulation, or any judgment, decree or order or governmental or regulatory agency or other body having jurisdiction over the Company or any of the Guarantors or any of their respective properties or assets; (13) Assuming that the representations and warranties of the Initial Purchasers contained in Section 4 of this Agreement are true, correct and complete, and assuming compliance by the Initial Purchasers with their covenants in Section 4 hereof, and assuming that the representations and warranties contained in the Transferee Letter (substantially in the form of Appendix A to the Offering Memorandum) completed by Accredited Investors purchasing Securities from the Initial Purchasers are true and correct as of the Closing Time, and assuming compliance by such Accredited Investors with the agreements in the Transferee Letter, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers under, or in connection with the initial resale of such Securities by the Initial Purchasers in accordance with, this Agreement to register the Securities under the Act or to qualify the Indenture under the Trust Indenture Act; (14) None of the Issuers is an "investment company" or a company "controlled by" or required to register as an investment company as such terms are defined in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder; (15) When the Securities are issued and delivered pursuant to this Agreement, such Securities will not be of the same class (within the meaning of Rule 144A) as securities of any of the Issuers which are listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system; and (16) Neither the consummation of the transactions contemplated hereby nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and the business and affairs of the Company and its ~~date~~ Subsidiaries were discussed, and although such counsel has not verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclause (11) above), on the basis of the foregoing, no facts have come to the attention of such counsel which lead such counsel to believe that the Offering Memorandum at the date thereof or as of ~~such opinion~~the Closing Time, ~~included~~ contained or ~~includes any~~ contains an untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading.~~ misleading (iiit being understood that such counsel need not express any comment with respect to the financial statements, including the notes thereto and supporting schedules, or any other financial data set forth or referred to in the Offering Memorandum). In rendering such opinions, such counsel (A) need not express any opinion with regard to the ~~Company~~ application of laws of any jurisdiction other than the Federal law of the United States, the General Corporation Law of the State of Delaware and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of ~~their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under~~ the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of ~~America~~ Georgia and ~~other U.S. jurisdictions in connection with the offer~~ Indiana and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent ~~such counsel deems proper,~~ they deem proper on representations or certificates of responsible officers of the ~~Company~~ Issuers and certificates of public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasersofficials. References to the ~~Final~~ Offering Memorandum in this subsection (a) ~~shall~~ include any ~~amendment~~ supplements thereto at or ~~supplement thereto prepared in accordance with the provisions of this Agreement at~~ prior to the Closing ~~Date~~Time. (b) The Initial Purchasers shall have received ~~a legal opinion from ▇▇▇▇~~the opinion, dated as of the Closing Time, of Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇, ▇▇~~▇ LLP, counsel~~ unsel for the Initial Purchasers, ~~dated the Closing Date,~~ with respect to certain ~~legal~~ matters ~~relating to~~ set forth in clauses (6), (7), (8), (9), (11) and (13) of subsection (a) of this ~~Agreement~~ Section 7; provided, however, that for purposes of the opinions expressed in clauses (6) through (9), such counsel shall additionally opine on the enforcement of such documents and ~~such other related matters as the Initial Purchasers may reasonably require~~agreements. In rendering such ~~opinion~~opinions, ~~▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP~~ such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal laws of the United States, the General Corporation Law of the State of Delaware and the laws of the State of New York and (B) may rely, as to matters of fact, to the extent they deem proper on representations or certificates of responsible officers of the Company and certificates of public officials. In addition, such counsel shall ~~have received and may rely upon~~ additionally state that such ~~certificates~~ counsel has participated in conferences with officers and other ~~documents~~ representatives of the Issuers and ~~information as it may reasonably request to~~ representatives of the independent accountants for the Issuers at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum, on the basis of the foregoing (relying as to materiality to the extent such ~~matters~~counsel deems appropriate upon the representations and opinions of officers and other representatives of the Issuers), no facts have come to the attention of such counsel which lead such counsel to believe that the Offering Memorandum, at the date thereof or as of the Closing Time, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no comment with respect to the financial statements, including the notes thereto, or any other financial or statistical data found in or derived from the internal accounting or other records of the Company and its subsidiaries set forth or referred to in the Offering Memorandum). (c) The ~~Initial Purchasers~~ following conditions contained in clauses (i) and (ii) of this subsection (c) shall have ~~received from PricewaterhouseCoopers LLP a letter or letters dated, respectively,~~ been satisfied at and as of the ~~date hereof~~ Closing Time and the ~~Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The~~ Company shall have ~~furnished or caused to be~~ furnished to the Initial Purchasers at a certificate, signed by the ~~Closing a certificate of its~~ Chairman of the ~~Board, its~~ Board or the President or ~~its Chief Executive Officer and its Chief Financial Officer satisfactory to~~ the ~~Initial Purchasers~~ principal financial or accounting officer of the Company, dated as of the Closing Time, to the effect that the signer of such certificate has carefully examined the Offering Memorandum, any amendment or supplement to the Offering Memorandum, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ Issuers in this Agreement are true and correct ~~as if made~~ in all material respects on and as of the Closing ~~Date;~~ Time with the same effect as if made at the Closing Time and the ~~Company has performed~~ Issuers have complied with all ~~covenants and~~ the agreements and satisfied all the conditions under this Agreement on its part to be performed or satisfied in all material respects at or prior to the Closing ~~Date; and~~Time; (ii) ~~subsequent to~~ since the ~~respective dates as~~ date of ~~which information is given~~ the most recent financial statements included in the ~~Final~~ Offering Memorandum (exclusive of any amendment or supplement thereto), ~~neither the Company nor any of its subsidiaries~~ there has ~~sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity~~been no Material Adverse Change, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, arising in the ~~condition (financial or otherwise)~~ordinary course of business. As used in this subparagraph, ~~management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ the term "Offering Memorandum" means the Offering Memorandum in the form first used to confirm sales of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Securities; and

Appears in 1 contract

Sources: Purchase Agreement (McRaes Stores Partnership)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ ------------------------------------------------- obligations of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Firm Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder ~~and~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the ~~Initial Purchasers~~ use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~been issued and no proceedings for that purpose shall have been commenced or shall be pending or, ~~counsel for~~ to the knowledge of the Company, ~~dated~~ be contemplated. No stop order suspending the ~~Closing Date~~sale of the Notes in any jurisdiction designated by the Initial Purchaser shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the ~~effect that:~~knowledge of the Company, shall be contemplated. (b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) ~~such counsel has no reason to believe that~~ any change in or affecting the condition (~~other than~~ financial or other), business, properties, net worth, or results of operations of the ~~financial statements~~ Company and ~~other financial information contained therein,~~ the Subsidiaries (taken as ~~to which such counsel need express no opinion~~a whole) not contemplated by the ~~Final~~ Offering Memorandum, as which in the opinion of the Initial Purchaser, would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving the Company or any officer or a key employee named in the Offering Memorandum, or any director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its ~~date~~ counsel or the ~~date~~ Initial Purchaser and its counsel, requires the making of ~~such opinion, included~~ any addition to or ~~includes any untrue statement of~~ change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or ~~omitted or omits to state any material fact~~ necessary in order to make the statements ~~therein~~therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the ~~light~~ opinion of the ~~circumstances under which they were made~~Initial Purchaser, ~~not misleading~~materially adversely affect the market for the Notes. (iic) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Initial Purchaser shall have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, received on ~~and as of~~ the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not Date an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇~~▇ LLP. An opinion of~~ ▇, ▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the ~~Initial Purchasers~~Company, dated the Closing Date and addressed to the Initial Purchaser, to the effect that: (i) The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum and, to such counsel's knowledge, is duly registered and qualified to conduct its business and is in good standing in each jurisdiction where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify would not have a Material Adverse Effect; (ii) EPRO is a corporation duly organized and validly existing in good standing under the laws of the jurisdiction of its organization, with corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Offering Memorandum; and all the outstanding shares of capital stock of EPRO have been duly authorized and validly issued, are fully paid and nonassessable, and, except as set forth in the Offering Memorandum, are owned by the Company free and clear of any perfected security interest, or, to the knowledge of such counsel after reasonable inquiry, any other security interest, lien, adverse claim, equity or other encumbrances; (iii) The authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Offering Memorandum under the caption "Description of Capital Stock"; (iv) All the shares of capital stock of the Company outstanding prior to the issuance of the Notes have been duly authorized and validly issued, are fully paid and nonassessable; (v) The Company has corporate power and authority to enter into this Agreement and the Registration Rights Agreement and to issue, sell and deliver the Notes to be sold by it to the Initial Purchaser as provided herein, and this Agreement and the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is the valid, legal and binding agreement of the Company, except as enforcement of rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; (vi) The Indenture has been duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles and as enforceability of rights to indemnity and contribution thereunder may be limited by Federal or State securities laws or principles of public policy; no qualification of the Indenture under the 1939 Act is required in connection with the offer and sale of the Notes contemplated hereby or in connection with the Exempt Resales; (vii) The Notes have been duly and validly authorized by the Company and when executed by the Company in accordance with the Indenture and, assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchaser against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; (viii) The shares of Common Stock issuable upon conversion of the Notes have been duly authorized and reserved for issuance and, when issued and delivered upon conversion of the Notes, in accordance with the terms thereof, will be validly issued, fully paid and nonassessable and to the best knowledge of such counsel, will be free of preemptive or similar rights; (ix) Neither the offer, sale or delivery of the Notes, the execution, delivery or performance by the Company of this Agreement and the Indenture, compliance by the Company with the provisions hereof or thereof nor consummation by the Company of the transactions contemplated hereby or thereby conflicts with or constitutes a breach of, or a default under, in any material respect, the certificate of incorporation or bylaws of the Company or any material agreement, indenture, lease or other instrument to which the Company is a party or by which its properties is bound and which have been filed as exhibits to any Incorporated Document, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any material agreement or instrument to which the Company is a party or by which it may be bound or to which any of the property or assets of the Company is subject, nor to such counsel's knowledge will any such action result in any violation in any material respect of any existing law, or any regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree, applicable to the Company; (x) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company for the valid issuance and sale of the Notes to the Initial Purchaser as contemplated by this Agreement except as may be required under state securities or blue sky laws or applicable rules and regulations of the NASD or in connection with qualifying the Indenture under the 1939 Act; (xi) To the knowledge of such counsel, (A) other than as described or contemplated in the Offering Memorandum, there are no legal or governmental proceedings pending or threatened against the Company or any of the Subsidiaries or to which the Company or any of its properties is subject, which are not disclosed in the Offering Memorandum and which, if adversely decided, are reasonably likely to cause a Material Adverse Effect or materially affects the issuance of the Notes or the consummation of the transactions contemplated by this Agreement and (B) there are no material agreements, contracts, indentures, leases or other instruments, that are not described in the Offering Memorandum or filed as exhibits to any of the Incorporated Documents; (xii) The statements in the Offering Memorandum, insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions, are accurate in all material respects and present fairly the information required to be shown; (xiii) Except as described in the Offering Memorandum, such counsel does not know of any person who has the right, contractual or otherwise, as a result of the consummation of the transactions contemplated by this Agreement, to require registration under the Act of any shares of Common Stock or other securities of the Company; (xiv) No registration of the Notes under the Act is required for the sale of the Notes to the Initial Purchaser as contemplated in this Agreement or for the Exempt Resales (assuming (A) that any Eligible Purchaser who buys the Notes in the Exempt Resales is a Qualified Institutional Buyer or a person other than a U.S. person outside the United States in reliance on Regulation S and (B) the accuracy of the Initial Purchaser's representations and those of the Company in this Agreement; and (xv) Although such counsel have not undertaken to determine independently, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Offering Memorandum, such counsel have participated in the preparation of the Offering Memorandum, including review and discussion of the contents thereof, and nothing has come to the attention of such counsel that has caused them to believe that the Offering Memorandum, as of its date and as of the Closing Date or the Option Closing Date, as the case may be, 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, in light of the circumstances under which they were made, not misleading or that any amendment or supplement to the Offering Memorandum, as of its respective date, and as of the Closing Date or the Option Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to ~~certain legal matters relating to this Agreement~~ the financial statements and ~~such~~ the notes thereto and the schedules and other ~~related matters as~~ financial and statistical data included or incorporated by reference in the Offering Memorandum and information furnished by or on behalf of the Initial ~~Purchasers may reasonably require. In rendering such opinion,~~ Purchaser). (d) The Initial Purchaser shall have received on the Closing Date an opinion of ▇▇~~▇▇▇▇~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~LLP~~ LLP, counsel for the Initial Purchaser, dated the Closing Date, and addressed to the Initial Purchaser, with respect to matters as the Initial Purchaser may request. (e) The Initial Purchaser shall have received letters addressed to the Initial Purchaser, and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, dated the date hereof and the Closing ~~Date~~Date from Ernst & Young LLP, independent certified public accountants, substantially in ~~form and substance satisfactory to counsel for~~ the forms heretofore approved by the Initial ~~Purchasers~~Purchaser. (di) There shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt of the Company (other than in the ordinary course of business or pursuant to the Indenture) from that set forth or contemplated in the Offering Memorandum (or any amendment or supplement thereto); (ii) there shall not have been, since the respective dates as of which information is given in the Offering Memorandum (or any amendment or supplement thereto), except as may otherwise be stated in the Offering Memorandum (or any amendment or supplement thereto), any material adverse change in the condition (financial or other), business, properties, net worth or results of operations of the Company and the Subsidiaries taken as a whole; (iii) the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Offering Memorandum (or any amendment or supplement thereto); and (iv) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date, and the Initial Purchaser shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of the Company (or such other officers as are acceptable to the Initial Purchaser), to the effect set forth in this Section 7(f) and in Section 7(g) hereof. (g) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date. (h) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any class of securities of the Company, or (ii) it is reviewing its ratings assigned to any class of securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined. (i) The Notes have been designated for trading in the PORTAL Market. (j) The Company shall have furnished or caused to be furnished to the Initial ~~Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ Purchaser such further certificates and ~~its Chief Financial Officer satisfactory to~~ documents as the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture Purchaser shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Companyrequested. All such opinions, certificates, letters and other documents ~~delivered pursuant to this Agreement~~ will ~~comply~~ be in compliance with the provisions hereof only if they are reasonably satisfactory in ~~all material respects~~ form and substance to the Initial ~~Purchasers~~ Purchaser and counsel for the Initial ~~Purchasers~~Purchaser. ~~The~~ Any certificate or document signed by any officer of the Company ~~shall furnish~~ and delivered to the Initial ~~Purchasers such conformed copies~~ Purchaser, or to counsel for the Initial Purchaser, shall be deemed a representation and warranty by the Company to the Initial Purchaser as to the statements made therein. The obligations of ~~such opinions~~the Initial Purchaser to purchase any Additional Notes hereunder are subject to the satisfaction on and as of any Option Closing Date of the conditions set forth in this Section 7, except that, if any Option Closing Date is other than the Closing Date, the certificates, ~~letters~~opinions and letters referred to in paragraphs (c) through (g) and paragraphs (i) and (l) shall be dated the Option Closing Date in question and the opinions called for by paragraphs (c), (d) and ~~documents in such quantities as~~ (e) shall be revised to reflect the ~~Initial Purchasers shall reasonably request~~sale of Additional Notes.

Appears in 1 contract

Sources: Purchase Agreement (Credence Systems Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements hereunder~~ obligations hereunder, and to each of the following additional terms and conditions: (a) ~~On the Closing Date, the~~ No Initial ~~Purchasers~~ Purchaser shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date,~~ discovered and disclosed to the ~~effect that: (i)~~ Company prior to or on such ~~counsel has no reason to believe~~ Delivery Date that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date~~ Offering Memorandum or ~~the date of such opinion, included~~ any amendment or ~~includes~~ supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material ~~fact or omitted~~ or omits to state any fact which is material ~~fact~~ and necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and ~~each of its “significant subsidiaries”~~ information that they may reasonably request to enable them to pass upon such matters. (c) ▇▇▇▇▇▇ Godward LLP shall have furnished to the Initial Purchasers their written opinion, as ~~defined~~ counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in ~~Rule 1.02(w~~form and substance satisfactory to the Initial Purchasers, to the effect that: (i) ~~of Regulation S-X under the Exchange Act) have~~ The Company has been duly organized and ~~are~~ is validly existing as ~~corporations~~ a corporation in good standing under the laws of ~~their respective jurisdictions~~ the State of ~~incorporation and are~~ Delaware, and, based solely on certificates of public officials, is duly qualified to ~~transact~~ do business ~~as foreign corporations~~ and ~~are~~ is in good standing ~~under~~ as a foreign corporation in each jurisdiction in which its ownership or lease of property or the ~~laws~~ conduct of ~~all other jurisdictions~~ its business requires such qualification, except where ~~such counsel has been advised that~~ the failure to be so qualified would ~~amount to~~ not have a material ~~liability or disability to~~ adverse effect on the ~~Company~~ Company, and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ has all corporate power and authority necessary to ~~own, lease and operate their respective~~ own or hold its properties and ~~assets and~~ conduct ~~their respective businesses~~ the business in which it is engaged; and, to the knowledge of such counsel, the Company has no subsidiaries; (ii) The Company has an authorized capitalization as ~~described~~ set forth in the ~~Final~~ Offering Memorandum, and all of the issued shares of capital stock of the Company ~~has corporate power~~ have been duly and validly authorized and conform to ~~enter into~~ the description thereof contained in the Offering Memorandum in the section entitled "Description of Capital Stock"; (iii) The Conversion Shares that are authorized on the date hereof have been duly authorized and validly reserved for issuance upon conversion of the Debentures and are free of preemptive rights; and the Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable; (iv) The statements in the Offering Memorandum under the captions "Description of the Debentures" and "Description of Capital Stock", insofar as they purport to summarize the provisions of the Indenture, the Registration Rights Agreement, the Debentures and the Common Stock (including the Conversion Shares) are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act; (v) There are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's certificate of incorporation or bylaws; (vi) To the knowledge of such counsel and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company is a party or of which any property or assets of the Company is the subject which, if determined adversely to the Company, might have a material adverse effect on the financial position, stockholders' equity, results of operations or business of the Company; and, to the actual knowledge of such counsel, no such proceedings are overtly threatened or contemplated by governmental authorities or threatened by others; (vii) The execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement and the ~~Indenture and to carry out all the terms and provisions hereof and thereof and~~ issuance of the ~~Notes to be carried out by it; all~~ Debentures and the Conversion Shares and the consummation of the ~~issued~~ transactions contemplated hereby and ~~outstanding shares of capital stock of each~~ thereby do not result in any violation of the ~~Company’s significant subsidiaries~~provisions of the certificate of incorporation or bylaws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties or assets; and, except as ~~otherwise set forth~~ may be required by the securities or "blue sky" laws of any state of the United States in connection with the ~~Final Memorandum~~sale of the Debentures, ~~are owned beneficially~~ no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company ~~free~~ and ~~clear~~ the issuance of ~~any perfected security interests or, to~~ the ~~best knowledge~~ Debentures and the Conversion Shares and the consummation of ~~such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments~~the transactions contemplated hereby and thereby; (~~iii~~viii) No registration of the ~~statements set forth~~ Debentures or the Conversion Shares under the ~~heading “Description~~ Securities Act, and no qualification of ~~Notes”~~ the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Debentures or in connection with the conversion of the Debentures into Conversion Shares, in each case, in the ~~Final~~ manner contemplated by the Offering Memorandum, this Agreement and the Indenture; (ix) The statements in the Offering Memorandum under the caption "Certain United States Federal Income Tax Considerations", insofar as ~~such statements~~ they purport to ~~summarize certain provisions~~ constitute summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material respects ~~as would be~~ to the extent required ~~to be disclosed~~ if such statements were contained in a ~~prospectus pursuant to~~ registration statement on Form S-3 under the ~~Act and the Exchange Act and the respective rules and regulations thereunder~~Securities Act; (ivx) The Company is not an "investment company" within the ~~execution and delivery~~ meaning of ~~this Agreement have been duly authorized by~~ the Investment Company Act of 1940, as amended; (xi) The Company has all necessary corporate ~~action~~ right, power and authority to execute and deliver each of the ~~Company~~ Operative Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Debentures and the Conversion Shares to the Initial Purchasers; (xii) This Agreement has been duly authorized, executed and delivered by the Company; (vxiii) ~~the execution and delivery of the~~ The Indenture ~~have~~ has been duly ~~authorized by the Company and~~authorized, ~~when duly~~ executed and delivered by the Company (and, assuming ~~the~~ due authorization, execution and delivery thereof by the Trustee), ~~the Indenture will be~~ constitutes a ~~legal,~~ legally valid and binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its terms ~~(subject~~except as the enforceability thereof may be limited by bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency,~~ moratorium and other similar laws relating to or ~~other laws~~ affecting creditors’ ' rights ~~generally from time~~ generally, subject to ~~time~~ general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in ~~effect). The Indenture meets the requirements for qualification under the TIA.~~a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing; (vixiv) ~~the Notes have~~ The Registration Rights Agreement has been duly ~~authorized by all necessary corporate action of the Company and~~authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), ~~will be~~ constitutes a ~~legal,~~ valid and legally binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its terms ~~(subject,~~ except as ~~to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any~~ rights to indemnity ~~or contribution thereunder~~ contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), by an implied covenant of good faith and fair dealing; and (xv) The Debentures have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and the Delaware General Corporation Law and may state ~~securities laws~~ that it is relying, in respect of matters of New York law, upon ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, and in respect of matters of fact, upon certificates of officers of the Company, PROVIDED that such counsel shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with officers and other representatives of the Company, the Company's independent public ~~policy considerations~~accountants, the Initial Purchasers and their counsel, at which the contents of the Offering Memorandum were discussed, and while such counsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (other than the financial statements, financial and statistical data and supporting schedules as to which such counsel shall make no statement), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (ixd) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel and Secretary of the ~~execution~~ Company, shall have furnished to the Initial Purchasers his written opinion, addressed to the Initial Purchasers and ~~delivery by~~ dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that: (i) All of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable; (ii) Except as disclosed in the Offering Memorandum, there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, ~~and the performance by~~ any shares of Common Stock pursuant to any agreement or other instrument to which the Company is a party known to such counsel; and (iii) The execution, delivery and performance of ~~its obligations under,~~ this ~~Agreement, the Registration Rights~~ Agreement, the Indenture and the ~~Notes, the Exchange Notes~~ Registration Rights Agreement and the ~~Private Exchange Notes, the issuance, offering and sale~~ issuance of the ~~Notes to~~ Debentures and the ~~Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement~~ Conversion Shares and the consummation of the ~~other~~ transactions ~~herein~~ contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms ~~and~~ or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, ~~lease~~ loan agreement or other ~~material~~ agreement or ~~instrument,~~ instrument known to such ~~counsel,~~ counsel to which the Company ~~or any of its significant subsidiaries~~ is a party or by which the Company is bound or to which any of ~~its significant subsidiaries~~ the property or ~~any of their respective properties are bound, or the charter documents or by-laws~~ assets of the Company ~~or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such~~ is subject. Such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes shall also have furnished to the Initial Purchasers ~~as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement~~a written statement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes addressed to the Initial Purchasers and ~~the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any~~ dated such ~~opinion~~Delivery Date, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and ~~scope~~ substance satisfactory to ~~counsel for~~ the Initial Purchasers, ~~upon~~ to the ~~opinion~~ effect that he has no reason to believe that the statements under the captions "Risk Factors--Our patents may not protect our products and our products may infringe on third-party patent rights" and "Patents and Proprietary Rights" in the Offering Memorandum, as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (e) ▇▇▇▇▇▇▇ ~~LLP. An opinion of~~ ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~▇▇, shall have furnished to the Initial Purchasers their written opinion, as counsel ~~for~~ to the Initial Purchasers, ~~dated the Closing Date, with respect~~ addressed to ~~certain legal matters relating to this Agreement and such other related matters as~~ the Initial Purchasers ~~may reasonably require. In rendering~~ and dated such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to ~~counsel for~~ the Initial Purchasers. (df) With respect to the letter of Ernst & Young LLP delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter. (g) The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers at on such Delivery Date a certificate, dated such Delivery Date and delivered on behalf of the ~~Closing a certificate~~ Company by one of its ~~Chairman of the Board, its President or its Chief Executive Officer~~ co-chief executive officers and its ~~Chief Financial Officer~~ chief financial officer, in form and substance satisfactory to the Initial ~~Purchasers~~ Purchasers, to the effect that: (i) ~~the representations~~ The representations, warranties and ~~warranties~~ agreements of the Company in ~~this Agreement~~ Section 1 are true and correct as ~~if made on~~ of the date given and as of ~~the Closing~~ such Delivery Date; and the Company has ~~performed~~ complied in all ~~covenants and~~ material respects with all its agreements ~~and satisfied all conditions on its part~~ contained herein to be performed ~~or satisfied at or~~ prior to ~~the Closing~~ or on such Delivery Date~~; and~~; (iiA) ~~subsequent to~~ The Company has not sustained since the ~~respective dates as~~ date of ~~which information is given~~ the latest audited financial statements included in the ~~Final~~ Offering Memorandum ~~(exclusive of~~ any ~~amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material~~ loss or interference with ~~their respective businesses or properties~~ its business from fire, ~~flood~~explosion, ~~hurricane, accident~~ flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any legal~~ court or governmental ~~proceeding~~action, order or decree, except (x) as set forth or contemplated in the Offering Memorandum and (y) for operating losses incurred in the ordinary course of business, or (B) since such date there has not been any ~~materially adverse change (including, without limitation, a~~ change in ~~management~~ the capital stock or ~~control~~long-term debt of the Company (except for issuances of shares of Common Stock upon exercise of outstanding options described in the Offering Memorandum or pursuant to Authorized Grants), or any change, or any development involving a prospective ~~materially adverse~~ change, in or affecting the ~~condition (financial or otherwise)~~general affairs, management, ~~earnings, properties, business affairs or business prospects~~financial position, stockholders~~’ equity, net worth~~ ' equity or results of operations of the ~~Company or any of its subsidiaries, taken as a whole~~Company, except ~~in each case~~ as ~~described in~~ set forth or contemplated by in the ~~Final Memorandum (exclusive of any amendment or supplement thereto).~~Offering Memorandum; and (eiii) ~~Subsequent to~~ Such officer has carefully examined the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changeOffering Memorandum and, in such officer's opinion (A) the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Offering Memorandum,

Appears in 1 contract

Sources: Purchase Agreement (Inhale Therapeutic Systems Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ~~Chance US~~ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the ~~Company~~Issuer and the Guarantors, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchasers, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light Each of the ~~circumstances under which they were made~~Issuer and the Guarantors is duly incorporated, ~~not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are~~ validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of incorporation and ~~are~~ is duly qualified to ~~transact~~ do business as a foreign ~~corporations and are~~ corporation in good standing ~~under~~ in each jurisdiction in the ~~laws of all other jurisdictions~~ United States in which they own or lease properties, or conduct any business, so as to require such qualification, except where ~~such counsel has been advised that~~ the failure to be so ~~qualified~~ qualify would ~~amount to a material liability~~ not, individually or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the ~~Final Memorandum~~aggregate, ~~and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and~~ have a Material Adverse Effect. (ii) All of the ~~Notes to be carried out by it; all of the issued and~~ outstanding shares of capital stock of ~~each~~ the Issuer and the Guarantors have been duly authorized and validly issued, are fully paid and nonassessable and all of the ~~Company’s significant subsidiaries, except as otherwise set forth in~~ capital stock of the ~~Final Memorandum, are~~ Issuer and the Subsidiary Guarantor is owned ~~beneficially~~ by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;Parent. (iii) Each of Issuer and the ~~statements set forth~~ Guarantors has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and each of the ~~heading “Description of Notes” in~~ other Operative Documents to which it is a party and to consummate the ~~Final Memorandum~~transactions contemplated hereby and thereby, ~~insofar as such statements purport~~ including, without limitation, the corporate power and authority to ~~summarize certain provisions of~~ issue, sell and deliver the Notes and the ~~Indenture~~Guarantees, ~~provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum~~as applicable, ~~insofar~~ as ~~such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed~~ contemplated by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;this Agreement. (iv) ~~the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the~~ This Agreement has been duly and validly authorized, executed and delivered by the ~~Company;~~Issuer and the Guarantors. (v) ~~the execution and delivery of the~~ The Indenture ~~have~~ has been duly and validly authorized by the ~~Company~~ Issuer and the Guarantors and, when duly executed and delivered ~~by the Company~~ in accordance with its terms (assuming the due ~~authorization,~~ execution and delivery thereof by the Trustee), ~~the Indenture~~ will be ~~a legal,~~ the valid and legally binding agreement of each of the ~~Company~~Issuer and the Guarantors, enforceable against each of the ~~Company~~ Issuer and the Guarantors in accordance with its ~~terms (subject~~terms, except as ~~to enforcement of remedies~~such enforceability may be limited by bankruptcy, ~~to applicable bankruptcy~~insolvency, reorganization, ~~insolvency,~~ moratorium and other similar laws now or ~~other laws~~ hereafter in effect relating to or affecting creditors’ ' rights ~~generally from time to time~~ generally, by general equitable principles (regardless of whether such enforceability is considered in ~~effect). The~~ a proceeding in equity or at law) or by the discretion of the court before which any proceeding therefor may be brought; and the Indenture meets the requirements for qualification under the TIA. (vi) When issued and authenticated in accordance with the ~~Notes have been duly authorized by all necessary corporate action~~ terms of the ~~Company and, on~~ Indenture and ~~as of~~ delivered against payment therefor in accordance with the ~~Closing Date~~terms hereof, the Notes will ~~have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will~~ be the ~~legal,~~ legally valid and binding obligations of the ~~Company~~Issuer, enforceable against the Issuer in accordance with their terms ~~(subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)~~ and entitled to the benefits of the Indenture~~; no holder~~ , except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, by general equitable principles (regardless of ~~securities~~ whether such enforceability is considered in a proceeding in equity or at law) or by the discretion of the ~~Company has~~ court before which any ~~right which has not been fully exercised or waived to require~~ proceeding therefor may be brought. (vii) When issued and authenticated in accordance with the ~~Company to register the offer or sale of any securities owned by such holder under the Act in the offering~~ terms of the ~~Notes contemplated by this Agreement or in the Exchange Offer contemplated by~~ Indenture, the Registration Rights Agreement~~; (vii)~~ , the Exchange Offer and the Private Exchange, the Exchange Notes and the Private Exchange Notes will be the legally valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms and entitled to the benefits of the Indenture, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by the discretion of the court before which any proceeding therefor may be brought. (viii) The Guarantees have been duly and validly authorized for issuance and sale to the Initial Purchasers by the ~~Company~~Guarantors and, ~~and~~ when the ~~Exchange Notes and the Private Exchange~~ Notes are duly ~~executed~~ and ~~delivered by the Company~~ validly authorized, executed, issued and authenticated in accordance with the terms of the ~~Registration Rights Agreement~~ Indenture and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee delivered against payment therefor in accordance with the ~~Indenture)~~terms hereof, will be the ~~legal,~~ legally valid and binding obligations of each of the ~~Company~~Guarantors, enforceable against each of the Guarantors in accordance with their terms ~~(subject~~and entitled to the benefits of the Indenture, except as ~~to enforcement of remedies~~such enforceability may be limited by bankruptcy, ~~to applicable bankruptcy~~insolvency, reorganization, ~~insolvency,~~ moratorium and other similar laws now or ~~other laws~~ hereafter in effect relating to one affecting creditors’ ' rights ~~generally from time to time~~ generally, by general equitable principles (regardless of whether such enforceability is considered in ~~effect)~~a proceeding in equity or at law) or by the discretion of the court before which any proceeding therefor may be brought. (~~viii~~ix) ~~the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the~~ The Registration Rights Agreement has been duly authorized by the ~~Company~~ Issuer and the Guarantors and, when duly executed and delivered by the ~~Company~~ Issuer and the Guarantors in accordance with its terms (assuming the due ~~authorization,~~ execution and delivery thereof by the ~~Initial Purchasers~~other parties thereto), will be ~~a legal,~~ the legally valid and binding ~~agreement~~ obligation of the ~~Company~~Issuer and each of the Guarantors, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by the ~~Company~~ discretion of the court before which any proceeding therefor may be brought. (x) The Global Bank Facility has been duly authorized by the Issuer and the guarantors thereof and, when duly executed and delivered by the Issuer and the guarantors thereof in accordance with its terms (~~subject~~assuming the due execution and delivery thereof by the other parties thereto), will be the legally valid and binding obligation of the Issuer and each of the guarantors thereof, enforceable against each of them in accordance with its terms, except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder such enforceability may be limited by ~~federal~~ bankruptcy, insolvency, reorganization, moratorium and ~~state securities~~ other similar laws ~~and public policy considerations)~~now or hereafter in effect relating to or affecting creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by the discretion of the court before which any proceeding therefor may be brought. (ixxi) The statements set forth in the ~~execution~~ Final Memorandum under the captions "Principal Shareholders," "Business--Tobacco-Properties," "Business--Wool-- Properties, "Business-Legal Proceedings" and ~~delivery by~~ "Private Placement," insofar as they purport to summarize matters of United States law or other legal matters, fairly and accurately summarize such laws and regulations in all material respects. (xii) The statements in the ~~Company of~~Final Memorandum under the headings "Description of the Global Bank Facility," "The Refinancing Plan," "Description of the Notes" and "Exchange Offer and Registration Rights," insofar as such statements purport to summarize certain provisions of the Indenture, the Notes, the Guarantees, the Exchange Notes, the Registration Rights Agreement and the Global Bank Facility and subject to the limitations contained in such statements, provide a fair and accurate summary in all material respects of such provisions of such agreements. (xiii) The execution, delivery and performance by the ~~Company~~ Issuer and each of ~~its obligations~~ the Guarantors of the Purchase Agreement, each of the other Operative Documents and the Global Bank Facility (to the extent a party thereto) and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchasers) do not and will not conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of or cause an acceleration of any obligation under, ~~this Agreement~~or result in the imposition or creation of (or the obligation to create or impose) a Lien (other than any Lien imposed or created under the Global Bank Facility or disclosed in the Offering Memorandum) on any properties or assets of the Issuer or any Guarantor with respect to (i) the terms or provisions of any Contract (which, based solely on representations of the Issuer and the Guarantors are the only Contracts the termination of which would result in a Material Adverse Effect) known to such counsel to which the Issuer or any Guarantor is a party, except for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws (or similar organizational document) of the Issuer or any Guarantor, or (iii) (assuming compliance by the Ini- tial Purchasers with the Act and all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any statute, rule or regulation known to such counsel to be of general applicability to, or any judgment, decree or order known to such counsel to be applicable to, the Issuer or any Guarantor or any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect. (xiv) To the knowledge of such counsel, no consent, waiver, approval, authorization or order of or filing, registration, qualification, license or permit of or with any court or governmental agency or body of the United States or the State of North Carolina or any third party is required for the issuance and sale by the Issuer and the Guarantors of the Securities to the Initial Purchasers or the consummation by the Issuer and the Guarantors of the other transactions contemplated hereby, including the creation and perfection of the contemplated security interest in the Collateral, except (i) in connection with the registration under the Act of the Exchange Notes and the Guarantees of the Exchange Notes pursuant to the Registration Rights Agreement, (ii) the qualification of the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or under the TIA in connection with the ~~exchange offer contemplated by~~ registration of the ~~Registration Rights Agreement~~Exchange Notes, (iii) such as may be required under Blue Sky laws, as to which such counsel need express no opinion and (iv) those which have previously been obtained. (xv) To the knowledge of such counsel, there are no legal or ~~(y) conflict with~~ governmental proceedings involving or ~~result in a breach or violation of~~ affecting any of the ~~terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company~~ Issuer or any of ~~its significant subsidiaries is a party or by which~~ the ~~Company or any of its significant subsidiaries~~ Guarantors or any of their respective properties ~~are bound,~~ or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to assets which ~~the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that~~ would be required to be described in a prospectus pursuant to the Act that are not so described in the Final ~~Memorandum or~~ Memorandum, nor are there any ~~statutes, regulations,~~ material contracts or other documents ~~that~~ which would be required to be described in a prospectus pursuant to the Act that are not so described ~~or incorporated~~ in the Final Memorandum. (~~xii~~xvi) ~~commencing with~~ None of the ~~Company’s taxable year ended December 31~~Issuer or any of the Guarantors is, ~~1998,~~ or (assuming that the ~~Company was organized~~ Securities are sold on the date hereof as provided in the Purchase Agreement and ~~has operated~~ proceeds from such sale are applied as described in ~~conformity with~~ the ~~requirements for qualification as a real estate investment trust (“REIT”)~~ Final Memorandum under the ~~Code~~caption "Use of Proceeds") will on the date of such opinion be, ~~and~~ an "investment company" as such term is defined in the ~~Company’s present and proposed method~~ Investment Company Act of ~~operation~~1940, as ~~represented by the Company, will permit the Company to continue to so qualify~~amended. (~~xiii~~xvii) No registration under the Act of the ~~Notes~~ Securities is required in connection with the sale of the ~~Notes~~ Securities to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the ~~Notes~~ Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer ~~(as defined in the Registration Rights Agreement)~~ or the effectiveness of the Shelf Registration ~~Statement (as defined in the Registration Rights Agreement)~~Statement, the Indenture is not required to be qualified under the TIA, in each case assuming (i) ~~(A)~~ that the purchasers who buy such ~~Notes~~ Securities in the initial resale thereof are (x) qualified institutional buyers as defined in Rule 144A promulgated under the Act or (~~“QIBs”~~v) accredited investors as defined in Rule 501(a) (1), (2), (3) or (B7) ~~that~~ promulgated under the ~~offer~~ Act or ~~sale of~~ (z) reasonably believed by the ~~Notes~~ Initial Purchasers to be persons other than U.S. Persons (as such term is ~~made in an offshore transaction as~~ defined in Regulation SS under the Act) to whom such sale may be made in reliance on the exemption from registration provided by Regulation S under the Act, (ii) the accuracy and completeness of the Initial Purchasers’ ' representations in Section 8 and those of the ~~Company~~ Issuers and the Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such ~~Notes~~ Securities to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. (xviii) No securities of the same class (within the meaning of Rule 144A under the Act) as the Notes are listed on a national securities exchange registered under Section 6 of the Exchange Act or are quoted in a United States automated inter-dealer quotation system. (xix) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. (xx) On the Closing Date, the ownership of the Parent's subsidiaries, will be such that all of its tobacco operating subsidiaries will be direct or indirect subsidiaries of the Issuer and all of its wool operating subsidiaries will be direct or indirect subsidiaries of the Subsidiary Guarantor; PROVIDED that Standard Wool (UK) Limited will be wholly owned by the Issuer and approximately 19.6% of the capital stock of Standard Wool France will be owned by the Issuer. At the time the foregoing opinion is delivered, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall additionally state that it has participated in conferences with officers and other representatives of the Issuer and the Guarantors, representatives of the independent public accountants for the Issuers representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsections (xi) and (xii), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or on the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). In rendering ~~any such opinion~~the foregoing opinions, ~~such counsel~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP may rely~~, as to matters of fact~~, to the extent such counsel deems proper, ~~on certificates~~ upon the representations and certifications of ~~responsible~~ officers of the ~~Company~~ Parent, the Issuer and the Subsidiaries or of public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasersofficials. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared by the Issuer in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing ~~Date~~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~~ opinion, dated as of the Closing ~~Date. (h) On or before the Closing Date,~~ Date and addressed to the Initial ~~Purchasers and~~ Purchasers, of Rosenman & Colin LLP, New York counsel for the ~~Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from~~ Issuer and the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Guarantors,

Appears in 1 contract

Sources: Purchase Agreement (Standard Commercial Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers to purchase ~~and pay for~~ the Series A Notes ~~shall, be subject, in the Initial Purchasers’ sole discretion,~~ under this Agreement are subject to the ~~accuracy~~ satisfaction of each of the following conditions: (a) All the representations and warranties of the Company contained ~~herein as of~~ in this Agreement shall be true and correct on the ~~date hereof~~ Closing Date with the same force and ~~as of each Closing Date,~~ effect as if made on and as of ~~each~~ the Closing Date. The Company shall have performed or complied with all of the agreements and satisfied all conditions to be performed, complied with or satisfied by it under this Agreement on or prior to the Closing Date. (1) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 9:00 a.m., New York City time, on the second business day following the date of this Agreement, or at such later date and time as the Initial 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, (i) no stop order preventing the use of the Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of the 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 ~~accuracy of the statements~~ knowledge of the Company~~’s officers made pursuant~~ , be contemplated. (1) Since the date of the latest balance sheet included in the Offering Documents, there shall not have been any event that had a Material Adverse Effect, or any development involving a prospective change that would be reasonably likely to have a Material Adverse Effect, whether or not arising in the ~~provisions hereof~~ordinary course of business; (2) since the date of the latest balance sheet included in the Offering Documents, to there has not been any change, or any development involving a prospective change, in the ~~performance by~~ capital stock or in the long-term debt of the Company ~~of its covenants and agreements hereunder and to~~ from that set forth in the ~~following additional conditions:~~Offering Documents; (a3) On the Company shall have no material liability or obligation, direct or contingent, other than those reflected in the Offering Memorandum; and (4) on the Closing Date, the Initial Purchasers shall have received a ~~legal opinion from~~ certificate dated the Closing Date, signed on behalf of the Company by ▇▇▇▇ ▇▇▇▇▇▇▇▇ ~~Chance US LLP~~and ▇▇▇▇▇▇ ▇▇▇▇, in their capacities as President and Senior Vice President, Finance and Human Resources, respectively, of the Company, confirming all matters set forth in Sections 9(a), (b), and (c) hereof. (d) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory to the Initial Purchasers and counsel to the Initial Purchasers) dated the Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company~~, dated the Closing Date~~, to the effect that: (i1) ~~such counsel~~ The Company has ~~no reason~~ all necessary corporate power and authority to ~~believe that~~ enter into and perform its obligations under the Operative Documents (other than the ~~financial statements~~ Acquisition Documents) and to issue, sell and deliver the Series A Notes to the Initial Purchasers to be sold by the Initial Purchasers pursuant hereto; (2) No consent, approval, authorization or order of, or filing or registration with, any regulatory body, administrative agency, or other ~~financial information contained therein~~governmental agency (except as securities or Blue Sky laws of the various states may require) which has not been made or obtained is required for the execution, delivery and performance of the Operative Documents (other than the Acquisition Documents) and the valid issuance and sale of the Series A Notes to the Initial Purchasers as ~~to which such counsel need express no opinion)~~ contemplated by this Agreement or the ~~Final~~ offering of the Series A Notes as contemplated by the Offering Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions except where ~~such counsel has been advised that~~ the failure to ~~be so qualified would amount to a material liability~~ obtain any such consents or ~~disability to the Company and its subsidiaries~~waivers, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described individually or in the ~~Final Memorandum~~aggregate, ~~and~~ would not be reasonably likely to have a Material Adverse Effect or adversely effect the ~~Company has corporate power~~ ability to ~~enter into this Agreement,~~ consummate the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to Transactions; (3) To the best ~~knowledge~~ of such counsel's knowledge, no consents or waivers from any person are required to consummate the transactions contemplated by the Operative Documents (other ~~security interests, liens, encumbrances, equities~~ than the Acquisition Documents) or ~~claims, except for pledges of subsidiary stock under debt instruments~~the Offering Documents other than such consents and waivers as have been or will be obtained; (~~iii~~4) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the This Agreement has been duly authorized and validly executed ~~and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized~~ by the Company ~~and, when duly executed~~ and ~~delivered by the Company~~ (assuming the due ~~authorization,~~ execution and delivery thereof by the ~~Trustee), the Indenture will be~~ Initial Purchasers) is a ~~legal,~~ legally valid and binding ~~agreement~~ obligation of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except as the enforceability thereof may be (~~subject, as to enforcement of remedies,~~ i) subject to applicable bankruptcy, ~~reorganization~~insolvency, moratorium, 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; (5) The Company 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 the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, ~~moratorium~~ moratorium, reorganization or ~~other~~ similar laws ~~affecting creditors’~~ in effect which affect the enforcement of creditors rights generally ~~from time to time~~ and (ii) limited by general principles of equity (whether considered in ~~effect~~a proceeding at law or in equity)~~. The Indenture meets the requirements for qualification under the TIA.~~; (vi6) ~~the Notes have been~~ The Company has duly authorized ~~by all necessary corporate action~~ the Series A Notes and, when issued and authenticated in accordance with the terms of the ~~Company and, on~~ Indenture and ~~as of~~ delivered to and paid for by the ~~Closing Date~~Initial Purchasers in accordance with the terms hereof, the Series A Notes will ~~have been duly executed~~ conform to the description thereof in the Offering Memorandum, and ~~delivered by the Company and, assuming due authentication by the Trustee,~~ will be the ~~legal,~~ legally valid and binding obligations of the Company, enforceable against the Company in accordance with their ~~terms~~ terms, except as the enforceability thereof may be (~~subject, as to enforcement of remedies,~~ i) subject to applicable bankruptcy, ~~reorganization,~~ insolvency, ~~moratorium~~ moratorium, reorganization or ~~other~~ similar laws ~~affecting creditors’~~ in effect which affect the enforcement of creditors rights generally ~~from time to time~~ and (ii) limited by general principles of equity (whether considered in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement a proceeding at law or in ~~the Exchange Offer contemplated by the Registration Rights Agreement~~equity); (~~vii~~7) ~~the Exchange Notes and the Private Exchange Notes have been~~ The Company has duly authorized by the ~~Company~~Series B Notes and, when issued and ~~when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company~~ authenticated in accordance with the terms of the Registration Rights Agreement and the ~~Indenture (assuming~~ Indenture, the ~~due authorization~~Series B Notes will conform to the description thereof in the Offering Memorandum, ~~execution~~ and ~~delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture),~~ will be the ~~legal,~~ legally valid and binding obligations of the Company, enforceable against the Company in accordance with their ~~terms~~ terms, except as the enforceability thereof may be (~~subject, as to enforcement of remedies,~~ i) subject to applicable bankruptcy, ~~reorganization,~~ insolvency, ~~moratorium~~ moratorium, reorganization or ~~other~~ similar laws ~~affecting creditors’~~ in effect which affect the enforcement of creditors rights generally ~~from time to time~~ and (ii) limited by general principles of equity (whether considered in ~~effect~~a proceeding at law or in equity).; (~~viii) the~~ 8) The Company has ~~all requisite corporate power~~ duly authorized, executed and ~~authority to execute, deliver and perform its obligations under~~ delivered the Registration Rights Agreement~~; the Registration Rights Agreement has been duly authorized by the Company and~~, ~~when duly executed~~ and ~~delivered by the Company~~ (assuming the due ~~authorization,~~ execution and delivery thereof by the Initial Purchasers~~), will be~~ ) the Registration Rights Agreement is a ~~legal,~~ legally valid and binding ~~agreement~~ obligation of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except as the enforceability thereof may be (~~subject, as to enforcement of remedies,~~ i) subject to applicable bankruptcy, ~~reorganization,~~ insolvency, ~~moratorium~~ moratorium, reorganization or ~~other~~ similar laws ~~affecting creditors’ rights generally from time to time~~ in effect ~~and except that any~~ which affect the enforcement of creditors rights ~~to indemnity or contribution thereunder may be~~ generally, (ii) limited by ~~federal~~ general principles of equity (whether considered in a proceeding at law or in equity) and ~~state~~ (iii) limited by securities laws prohibiting or limiting the availability of, and public policy ~~considerations).~~against, indemnification or contribution; (ix9) The statements under the ~~execution~~ captions "Certain Transactions," "Description of Notes," "Description of Certain Indebtedness," and ~~delivery~~ "Certain U.S. Federal Income Tax Considerations" in the Offering Memorandum, insofar as such statements constitute a summary of legal matters, documents or proceedings referred to therein, are correct in all material respects; (10) The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company ofAct of 1940, as amended; (11) When the Series A Notes are issued and ~~the performance by the Company of its obligations under,~~ delivered pursuant to this Agreement, such Series A Notes will not be of the ~~Registration Rights Agreement,~~ same class (within the ~~Indenture and~~ meaning of Rule 144A under the ~~Notes,~~ Act) as securities of the Company 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; (12) 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; (13) No registration under the Act of the Series A Notes ~~and~~ is required for the ~~Private Exchange Notes, the issuance, offering and~~ 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 Institutions, (ii) the accuracy of, and compliance with, the representations of the Initial Purchasers and those of the Company contained in Sections 6 and 7 hereof and (iii) the accuracy of the representations made by each Accredited Institution who purchases Series A Notes pursuant to an Exempt Resale as set forth in the letters of representation executed by such Accredited Institutions in the form of Annex A to the Offering Memorandum). In addition, such counsel shall state that it has participated in conferences with officers and other representatives of the Company, 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 Memorandum and related matters were discussed, and, although such counsel is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum, and have not made any independent check or verification thereof, during the course of such participation (relying as to 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 Memorandum, as of its 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 the financial statements, schedules and other financial and statistical data included in the Offering Memorandum or incorporated therein. (e) The Initial Purchasers shall have received on the Closing Date an opinion (satisfactory to the Initial Purchasers and counsel to the Initial Purchasers) dated the Closing Date of ▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the Company, to the effect that: (1) The Company is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, has full corporate power and authority to carry on its respective business as it is currently being conducted and to own, lease and operate its respective properties, and, to the best of such counsel's knowledge, is duly qualified and is in good standing as a foreign corporation registered to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not be reasonably likely to have a Material Adverse Effect; (2) All of the outstanding capital stock of the Company has been duly authorized and validly issued and is fully paid and nonassessable and is not subject to preemptive or similar rights; (3) The Company has all necessary corporate power and authority to enter into and perform its obligations under the Acquisition Documents; (4) The Company is not in violation of its charter or bylaws, and, to the best knowledge of such counsel after due inquiry, the Company is not 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, to which the Company is a party or by which the Company or its property is bound; (5) The execution, delivery and performance of the Operative Documents by the ~~Company pursuant to this Agreement~~Company, ~~the~~ compliance by the Company with the ~~other~~ provisions ~~of this Agreement~~ thereof and the Series A Notes, and the consummation of the ~~other~~ transactions ~~herein~~ contemplated do hereby and thereby does not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or ~~result in~~ constitute a breach ~~or violation~~ of any of the terms ~~and~~ or provisions of, or ~~constitute~~ a default under, or result in the imposition of a lien or encumbrance on any properties of the Company, or an acceleration of indebtedness pursuant to, (1) the charter or bylaws of the Company, (2) any bond, debenture, note, indenture, mortgage, deed of ~~trust, lease~~ trust or other ~~material~~ agreement or ~~instrument,~~ instrument known to such ~~counsel,~~ counsel after due inquiry to which the Company ~~or any of its significant subsidiaries~~ is a party or by which the Company or any of its ~~significant subsidiaries or any of their respective properties are~~ property is bound, or (3) to the ~~charter documents~~ best of such counsel's knowledge, any law or ~~by-laws of~~ administrative regulation applicable to the Company or any of its ~~significant subsidiaries~~assets or properties, ~~or any statute~~ or any judgment, ~~decree, order, rule~~ order or ~~regulation~~ decree of any court or ~~other~~ governmental agency or authority or entered in any ~~arbitrator known~~ proceeding to ~~such counsel and applicable to~~ which the Company was or ~~its significant subsidiaries; (x) the Company~~ is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal now a party or ~~governmental proceedings pending or threatened~~ to which the Company or any of its ~~subsidiaries~~ property may be subject; (6) 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 various states may require) which has not been made or obtained is required for the execution, delivery and performance of the Acquisition Documents, 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 effect the ability to consummate the Transactions; (7) To the best of such counsel's knowledge, no consents or waivers from any person are required to consummate the transactions contemplated by the Acquisition Documents other than such consents and waivers as have been or will be obtained; (8) To the best knowledge of such counsel, after due inquiry, there is (i) 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 is or may be a party or to which the business or property of the Company 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 ~~its subsidiaries~~ any nature by a federal or state court of competent jurisdiction applicable to the Company has been issued that, in the case of clauses (i), (ii) and (iii) above, (a) is ~~subject~~ required to be disclosed in the Offering Memorandum and that is not so disclosed, (b) would be interfere with or adversely affect the issuance of the Series A Notes or the consummation of the Acquisition, or (c) might invalidate any provision or the validity of the Operative Documents or the Series A Notes; (9) To the best knowledge of such counsel, there is no contract or document concerning the Company of a character required to be described in the Offering Memorandum that is not so described or filed in a ~~prospectus~~ registration statement on Form S-4 if the Senior Notes were registered pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.Act; (~~xii~~10) ~~commencing with~~ To the ~~Company’s taxable year ended December 31~~best knowledge of such counsel, ~~1998~~after due inquiry, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act following consummation of the ~~Notes is required in connection with the sale~~ Transactions, no holder of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those any security of the Company ~~contained in this Agreement regarding the absence~~ has any right to require registration of ~~a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers~~ any of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.Company's securities; (bf) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (Gfsi Inc)

Appears in 1 contract

Sources: Purchase Agreement (Venture Service Co)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Series B Notes ~~shall, be subject, in the Initial Purchasers’ sole discretion,~~ under this Agreement are subject to the ~~accuracy~~ satisfaction of each of the following conditions: (a) All the representations and warranties of the Company and the Guarantors contained ~~herein as of~~ in this Agreement shall be true and correct in all material respects (other than those representations and warranties that are qualified by a reference to materiality, which shall be true and correct in all respects) on the ~~date hereof~~ Closing Date with the same force and ~~as of each Closing Date,~~ effect as if made on and as of ~~each~~ the date hereof and the Closing Date, respectively. The Company and the Guarantors shall have performed or complied with in all material respects all of their obligations and agreements herein contained (other than those obligations and agreements that are qualified by a reference to materiality, which shall be performed or complied with in all respects) and required to be performed or complied with by them at or prior to the ~~accuracy~~ Closing Date. (b) No stop order suspending the sale of the ~~statements~~ Series B Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the ~~Company’s officers made pursuant to~~ Closing Date, prevent the ~~provisions hereof~~issuance of the Series B Notes; (ii) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Series B Notes; and (iii) on the Closing Date no action, suit or proceeding shall be pending against or affecting or, to the ~~performance by~~ knowledge of the Company and the Guarantors, threatened against, Holding, the Company or any Subsidiary before any court or arbitrator or any governmental body, agency or official which, if adversely determined, would prohibit the issuance of ~~its covenants and agreements hereunder and to~~ the ~~following additional conditions:~~Series B Notes except as disclosed in the Offering Memorandum. (i) Since the date hereof or since the dates as of which information is given in the Offering Memorandum, there shall not have been any Material Adverse Change, (ii) since the date of the latest balance sheet included in the Offering Memorandum, there shall not have been any material change in the capital stock or long-term debt, or material increase in short-term debt, of Holding, the Company or any of the Subsidiaries (other than as disclosed in the Offering Memorandum) and (iii) Holding, the Company and the Subsidiaries shall have no liability or obligation, direct or contingent, that is material to Holding, the Company and the Subsidiaries taken as a whole and is required to be disclosed on a balance sheet in accordance with GAAP and is not disclosed on the latest balance sheet included in the Offering Memorandum. (e) You shall have received certificates, dated the Closing Date, signed by (i) the President or any Vice President or any other executive officer and (ii) a principal financial or accounting officer of the Company and each of the Guarantors confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8. (f) On the Closing Date, ~~the Initial Purchasers~~ you shall have received ~~a legal~~ an opinion ~~from~~ (satisfactory to you and your counsel), dated the Closing Date, of ▇'▇▇▇▇▇▇▇▇ ~~Chance US~~ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel for the ~~Company, dated~~ Company and the ~~Closing Date~~Guarantors, to the effect that: (i) ~~such counsel has no reason to believe that (other than the financial statements and other financial information contained therein~~Holding, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have been~~ Subsidiaries is a duly organized and ~~are~~ validly existing ~~as corporations~~ corporation in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation and are duly qualified to transact business as foreign corporations and are in good standing under~~ incorporation, has the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets~~ to conduct its business as it is currently being conducted and ~~conduct their respective businesses as~~ described in the ~~Final~~ Offering Memorandum, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction listed on a schedule attached to the opinion; (ii) Each of the Company and the Guarantors has all necessary corporate power and authority to ~~enter into~~ execute and deliver this Agreement, the Series B Notes, the Note Guarantees, the Indenture and the Registration Rights Agreement, as applicable, and to perform its obligations under this Agreement, the Indenture and the Registration Rights Agreement and to authorize, issue, sell and deliver the Series B Notes and the Note Guarantees, as applicable, as contemplated by this Agreement; (iii) Each of this Agreement, the Series B Notes, the Note Guarantees, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly ~~executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and~~authorized, ~~when duly~~ executed and delivered by the Company and the Guarantors, as applicable; (~~assuming~~ iv) When authenticated in accordance with the ~~due authorization, execution~~ terms of the Indenture and ~~delivery thereof~~ delivered to and paid for by you in accordance with the ~~Trustee)~~terms of this Agreement, the ~~Indenture~~ Series B Notes will ~~be a legal,~~ constitute valid and legally binding ~~agreement~~ obligations of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms ~~(subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)~~ and entitled to the benefits of the Indenture~~; no holder~~ , subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of ~~securities~~ equity (regardless of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement whether enforcement is sought at law or in ~~the Exchange Offer contemplated by the Registration Rights Agreement~~equity); (~~vii~~v) When the ~~Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange~~ Series B Notes are ~~duly~~ executed and ~~delivered by the Company~~ authenticated in accordance with the terms of the ~~Registration Rights Agreement and the Indenture (assuming the due authorization~~Indenture, ~~execution and delivery~~ each of the ~~Indenture by the Trustee and due authentication and delivery of the Exchange~~ Notes ~~and the Private Exchange Notes by the Trustee in accordance with the Indenture),~~ Guarantees endorsed thereon will ~~be the legal,~~ constitute valid and legally binding obligations of the ~~Company~~respective Guarantor, enforceable against each such Guarantor in accordance with ~~their~~ its terms ~~(subject~~and entitled to the benefits of the Indenture, ~~as to enforcement of remedies,~~ subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~insolvency,~~ moratorium ~~or other~~ and similar laws affecting creditors’ ' rights and remedies generally ~~from time~~ and to ~~time~~ general principles of equity (regardless of whether enforcement is sought at law or in ~~effect~~equity). (~~viii~~vi) The Series C Notes and the ~~Company has all requisite corporate power and authority~~ note guarantees to ~~execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has~~ be endorsed thereon have been duly authorized by the Company ~~and~~and each of the Guarantors, ~~when duly executed and delivered by~~ as the ~~Company~~ case may be; (vii) The Indenture, assuming due authorization, execution and delivery thereof by the ~~Initial Purchasers)~~Trustee, ~~will be~~ constitutes a ~~legal,~~ valid and legally binding agreement of the ~~Company~~Company and each of the Guarantors, enforceable against ~~the Company~~ each of them in accordance with its ~~terms (subject~~terms, ~~as to enforcement of remedies,~~ subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~insolvency,~~ moratorium ~~or other~~ and similar laws affecting creditors’ ' rights and remedies generally ~~from time~~ and to ~~time~~ general principles of equity (regardless of whether enforcement is sought at law or in ~~effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations~~equity).; (ixviii) ~~the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement~~The Notes, the ~~Registration Rights Agreement~~Note Guarantees, the Indenture and the ~~Notes~~Registration Rights Agreement conform to the descriptions thereof contained in the Offering Memorandum in all material respects; (ix) All of the issued and outstanding shares of capital stock of, or other ownership interests in, each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable. All of the shares of capital stock of, or other ownership interests in, each Subsidiary are owned, directly or through Subsidiaries, by the Company; (x) To the best knowledge of such counsel, there are no outstanding subscriptions, rights, warrants, options, calls, convertible securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, any Subsidiary (other than those Liens created pursuant to the Credit Facility (as defined in the Offering Memorandum)); (xi) Neither Holding, the ~~Exchange~~ Company nor any of the Subsidiaries is (a) an "investment company" or a company "controlled" by an investment company within the meaning of the Investment Company Act of 1940, as amended, or (b) a "holding company" or a "subsidiary company" of a holding company or an "affiliate" thereof within the meaning of the Public Utility Holding Company Act of 1935, as amended; (xii) The descriptions in the Offering Memorandum of statutes, legal and governmental proceedings, and contracts and other documents are accurate in all material respects; it being understood that such counsel need express no opinion as to the financial statements, notes or schedules or other financial data included therein; (xiii) To the knowledge of such counsel: (a) no action has been taken and no statute, rule or regulation or order has been enacted, adopted or issued by any governmental agency or body which prevents the issuance of the Series B Notes or the Notes Guarantees, and such counsel has received no notice which suspends the ~~Private Exchange Notes, the issuance, offering and~~ sale of the Series B Notes or the Notes Guarantees; (b) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction has been issued with respect to Holding, the ~~Initial Purchasers~~ Company or any of the Subsidiaries which would prevent or suspend the issuance or sale of the Series B Notes or the Notes Guarantees, and such counsel has not received notice which prevents or suspends the use of the Offering Memorandum in any jurisdiction referred to in Section 4(e) hereof; and (c) no action, suit or proceeding is pending against or threatened against or affecting Holding, the Company or any of the Subsidiaries before any court or arbitrator or any governmental body, agency or official, domestic or foreign, which, if adversely determined, would prevent the issuance of the Series B Notes or the Notes Guarantees; (xiv) Except as may be required under state securities or "Blue Sky" laws or regulations or by the ~~Company pursuant~~ NASD, as to ~~this Agreement~~which such counsel expresses no opinion, ~~the compliance by the Company with the other provisions of this Agreement and~~ no authorization, approval, consent or order of, or filing with, any court or governmental body or agency is required for the consummation of the ~~other~~ transactions ~~herein~~ contemplated ~~do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority~~by this Agreement, except such as have been obtained and made under the Act; no consents or ~~made~~ waivers from any person under any bond, debenture, note, indenture, mortgage, deed of trust or other agreement or instrument that is listed on a schedule to the opinion are required to consummate the transactions contemplated by this Agreement or the other Operative Documents, except for any consent or waiver which has been obtained on or prior to the Closing Date; (xv) On the Closing Date, the Offering Memorandum (except for financial statements, the notes thereto and ~~specified~~ related schedules and other financial data included therein, or omitted therefrom, as to which no opinion need be expressed) complied as to form in ~~such opinion~~all material respects with Rule 144A(d)(4) ~~or such as may be required by the securities or Blue Sky laws~~ of the ~~various states~~ Act; (xvi) To the best knowledge of such counsel, other than as set forth on Schedule B to this Agreement, neither Holding, the Company nor any of the ~~United States~~ Subsidiaries is in violation of ~~America~~ its respective charter or bylaws or in default in the performance of any obligation, agreement or condition contained in any agreement or instrument listed on a schedule to the opinion; to the best knowledge of such counsel, there exists no condition which, with notice, the passage of time or otherwise, would constitute a default under any such document or instrument; (xvii) The execution and delivery of this Agreement and the other ~~U.S. jurisdictions in connection with~~ Operative Documents, the ~~offer~~ issuance and sale of the Series B Notes and the Note Guarantees, the performance of this Agreement and the other Operative Documents, compliance by the ~~Initial Purchasers~~ Company and ~~except those that may be required by~~ the ~~Act or the TIA in connection~~ Guarantors with the ~~exchange offer~~ provisions hereof and thereof and of the Series B Notes and the Note Guarantees, the consummation of the transactions contemplated by hereby and thereby and the ~~Registration Rights Agreement~~payments described in the Offering Memorandum under the caption "Use of Proceeds," in each case, ~~or (y) conflict with or~~ as applicable, will not result in a breach or violation of any of the respective charters or bylaws of Holding, the Company or any of the Subsidiaries or any of the terms ~~and~~ or provisions of, or constitute a default or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a Lien with respect to, any ~~indenture, mortgage, deed of trust, lease or other material~~ agreement or ~~instrument~~instrument listed on a schedule to the opinion, ~~known~~ or, to the knowledge of such counsel, ~~to which~~ contravene any order of any court or governmental agency or body having jurisdiction over Holding, the Company or any of ~~its significant subsidiaries is a party~~ the Subsidiaries or ~~by which~~ any of their properties, or violate any statute, rule or regulation or administrative or court decree applicable to Holding, the Company or any of ~~its significant subsidiaries~~ the Subsidiaries, or any of their respective ~~properties are bound, or the charter documents or by-laws~~ properties; (xviii) The Registration Rights Agreement constitutes a valid and legally binding agreement of the Company and each Guarantor, enforceable against each of them in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or ~~any~~ affecting creditors' rights generally, and to general equitable principles (regardless of ~~its significant subsidiaries~~whether considered in a proceeding in equity or at law) and, ~~or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable~~ to the ~~Company or its significant subsidiaries~~extent the Registration Rights Agreement provides for rights of indemnification and contribution, subject to the limitations of applicable law; (xxix) When the ~~Company is not an “investment company” and, after giving effect~~ Series B Notes are issued and delivered pursuant to the ~~Offering of the~~ Purchase Agreement, such Series B Notes ~~and the application of the proceeds therefrom,~~ will not be ~~an “investment company”,~~ of the same class (within the meaning of Rule 144A under the Act) as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or ~~any of its subsidiaries is subject~~ that ~~would be required to be described~~ are quoted in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.United States automated inter-dealer quotation system; (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiiixx) No registration under the Act of the Series B Notes is required ~~in connection with~~ for the sale of the Series B Notes to ~~the Initial Purchasers~~ you as contemplated ~~by this Agreement~~ hereby or for the Exempt Resales (assuming, without independent investigation, (A) that each of the Eligible Purchasers who buy the Series B Notes in the Exempt Resales are QIBs; (B) your representations and agreements relating to the absence of general solicitation are accurate and will be complied with; (C) the Company's and the ~~Final Memorandum or in connection with~~ Guarantors' representations and agreements relating to (1) whether the ~~initial resale~~ Notes are of the ~~Notes by~~ same class as other securities of the ~~Initial Purchasers in accordance with~~ Company that are listed on a national securities exchange registered under Section ~~8 of this Agreement, and prior to the commencement~~ 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system, (2) whether any form of general solicitation was used by the Company or the Guarantors, (3) other offerings of securities of the same class as the Notes and (4) whether the Offering Memorandum contains all the information specified in, and meeting the requirements of, Rule 144A(d)(4) under the Act are accurate; (D) each of the Eligible Purchasers to whom the Initial Purchaser initially resells the Series B Notes receives a copy of the Offering Memorandum at or prior to delivery of a confirmation of such sale, if delivery of the Offering Memorandum is required by applicable law; and (E) that the certificates representing the Series B Notes will bear the legend specified herein); (xxi) Prior to the Exchange Offer ~~(as defined in the Registration Rights Agreement)~~ or the effectiveness of the Shelf Registration ~~Statement (as defined in the Registration Rights Agreement)~~Statement, the Indenture is not required to be qualified under the TIA; and (xxii) The Offering Memorandum, in as of its date, and each ~~case assuming (i~~amendment or supplement thereto, as of its date, contained the information specified in, and meets the requirements of Rule 144A(d)(4) ~~(A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale~~ of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements Act. The opinions set forth in ~~Section 8 hereof. In rendering any such opinion~~paragraphs (ix) and (x) will be based solely on a review of stock records and other specified corporate record books of Holding, ~~such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of~~ the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form its Subsidiaries and ~~scope to counsel for the Initial Purchasers, upon the~~ applicable law. The opinion of ▇'▇▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~▇▇, ~~counsel for~~ LLP shall be rendered to you at the ~~Initial Purchasers, dated~~ request of the ~~Closing Date, with respect to certain legal matters relating to this Agreement~~ Company and ~~such other related matters as~~ the ~~Initial Purchasers may reasonably require~~Guarantors and shall so state therein. In ~~rendering such opinion~~giving their opinion required by this subsection 8(f), ▇'▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇~~ Karabell, LLP shall ~~have received and may rely upon~~ additionally state that such ~~certificates~~ counsel has participated in conferences with officers and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties representatives of the Company ~~in this Agreement are true~~ and ~~correct as if made on and as~~ the Guarantors, representatives of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review independent public accountants for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and ~~such agreement shall be~~ the Guarantors, your representatives and your counsel in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply connection with the ~~provisions hereof only if they are satisfactory in all material respects to~~ preparation of the ~~Initial Purchasers and~~ Offering Memorandum, although such counsel ~~for~~ has not independently verified the ~~Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies~~ accuracy, completeness or fairness of such ~~opinions~~statements (except as indicated above); and such counsel advises you that, ~~certificates~~on the basis of the foregoing, ~~letters, and documents in~~ no facts came to such ~~quantities~~ counsel's attention that caused such counsel to believe that the Offering Memorandum (as ~~the Initial Purchasers shall reasonably request.~~amended

Appears in 1 contract

Sources: Purchase Agreement (Norwich Injection Moulders LTD)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes ~~shall,~~ to be ~~subject~~purchased by it on the Closing Date hereunder are subject to the fulfillment, in ~~the~~ such Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for those purposes shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. No order suspending the sale of the Notes in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. (b) At the Closing Date, the Reorganization Transactions and the Related Transactions shall have been consummated; and the Company shall have provided to the Initial Purchasers ~~shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP,~~ or counsel for the ~~Company, dated the Closing Date,~~ Initial Purchasers copies of all closing documents delivered to the ~~effect that:~~parties to the Reorganization Transactions and the Related Transactions. (c) Subsequent to the date hereof, (i) ~~such counsel has no reason to believe that~~ except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (~~other than~~ financial or other), business, prospects, properties, assets, net worth or results of operations of the ~~financial statements and other financial information contained therein~~Company, taken as ~~to which such counsel need express no opinion~~a whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Notes, or (ii) the ~~Final Memorandum, as of its date or the date of such opinion, included or includes~~ Offering Memorandum shall not contain any untrue statement of a material fact or ~~omitted or omits~~ omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~. (ii)~~ , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to ~~transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where~~ correct any such ~~counsel has been advised that the failure to be so qualified would amount to a material liability~~ misstatement or ~~disability to the Company and its subsidiaries~~omission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers~~’ representations in Section 8 and those~~ , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateNotes. (bd) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from~~ of ▇▇▇~~▇▇▇~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, substantially in the form of EXHIBIT A hereto. (e) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, dated the Closing ~~Date~~Date and addressed to the Initial Purchasers, with respect to ~~certain legal matters relating to this Agreement and~~ such ~~other related~~ matters as the Initial Purchasers may ~~reasonably require. In rendering such opinion~~request. (f) The Initial Purchasers shall have received a "cold comfort" letter addressed to the Initial Purchasers, and dated the date hereof and the Closing Date, from each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request~~ , P.C., substantially to ~~pass upon such matters~~the effect set forth in EXHIBIT B hereto. (ci) ~~The~~ There shall not have been any material change in the capital stock of the Company or any Subsidiary nor any material increase in the short-term or long-term debt of the Company or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole; (iii) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; and (iv) the Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP~~ a ~~letter~~ certificate, dated the Closing Date and signed by the Chairman and Chief Executive Officer and the chief accounting officer of the Company (or ~~letters dated~~such other officers as are reasonably acceptable to the Initial Purchasers), ~~respectively,~~ to the ~~date hereof~~ effect set forth in this Section 7(g) and in Section 7(h) hereof. (h) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of their respective agreements herein contained and required to be performed or complied with by them hereunder at or prior to the Closing Date~~, in form and substance satisfactory to counsel for the Initial Purchasers~~. (di) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any class of Notes of the Company (including the Notes), or (ii) it is reviewing its ratings assigned to any class of Notes of the Company (including the Notes) with a view to possible downgrading, with negative implications or direction not determined. (j) The Notes shall have been approved for trading on PORTAL. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers ~~at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ such further certificates and ~~its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct~~ customary closing documents as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably ~~requested from the Company~~requested. All such opinions, certificates, letters and other documents ~~delivered pursuant to this Agreement~~ will ~~comply~~ be in compliance with the provisions hereof only if they are reasonably satisfactory in ~~all material respects~~ form and substance to the Initial ~~Purchasers~~ Purchasers. Any certificate or document signed by any officer of the Company and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers~~. The~~ , shall be deemed a representation and warranty by the Company ~~shall furnish~~ to the Initial Purchasers ~~such conformed copies of such opinions, certificates, letters, and documents in such quantities~~ as to the ~~Initial Purchasers shall reasonably request~~statements made therein.

Appears in 1 contract

Sources: Purchase Agreement (Labranche & Co Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial ~~Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ Purchaser hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its ~~covenants and agreements hereunder~~ obligations hereunder, and to each of the following additional terms and conditions: (a) On The Initial Purchaser shall not have discovered and disclosed to the ~~Closing Date~~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, in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, is material or omits to state any fact which is material and necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (b) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial ~~Purchasers~~ Purchaser, and the Company shall have ~~received a legal opinion from~~ furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters; (c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~Chance US LLP~~shall have furnished to the Initial Purchaser its written opinion, as counsel ~~for~~ to the Company, addressed to the Initial Purchaser and dated such Delivery Date, in form and substance reasonably satisfactory to the ~~Closing Date~~Initial Purchaser, to the effect that: (i) The Company and each of the Delaware Guarantors have been duly organized and are validly existing as corporations in good standing under the laws of Delaware, and have all corporate power and authority necessary to conduct their respective businesses as described in the Offering Memorandum; (ii) All of the outstanding shares of Common Stock of the Company have been duly authorized, validly issued, fully paid and non-assessable; and all of the issued shares of capital stock of each Delaware Guarantor of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except for directors' qualifying shares) and, based solely on our examination of each such subsidiary's stock ledger and minute book, all such shares are held of record by the Company and/or a subsidiary of the Company; (iii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming the Indenture is a valid and legally binding obligation of the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (iv) The Notes have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the terms of the Purchase Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; and the Notes, when issued and delivered, will conform to the description thereof contained in the Offering Memorandum; (v) The Conversion Shares that are authorized on the date hereof have been duly authorized and validly reserved for issuance upon conversion of the Notes; and the Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable; (vi) The Guarantees have been duly authorized, executed and issued by the Delaware Guarantors and, assuming due authentication of the Notes by the Trustee, upon payment and delivery in accordance with the terms of the Purchase Agreement will constitute valid and legally binding obligations of each of the Delaware Guarantors enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (vii) Assuming that the Guarantees have been duly authorized and issued by each of the Non-Delaware Guarantors and, assuming due authentication of the Notes by the Trustee, upon payment and delivery of the Notes in accordance with the terms of the Purchase Agreement, the Guarantees will constitute valid and legally binding obligations of the Non-Delaware Guarantors enforceable against the Non-Delaware Guarantors. (viii) The statements contained in the Offering Memorandum under the captions "Risk Factors-The notes are subordinated to all our existing and future senior indebtedness, which may inhibit our ability to repay you," "Risk Factors-The terms of our senior indebtedness could restrict our flexibility and limit our ability to satisfy obligations under the Notes," "Risk Factors--Future sales of common stock of L-3 Holdings in public market could lower the stock price," "Risk Factors--Delaware Law and the charter documents of L-3 Holdings may impede or discourage a takeover, which could cause the market price of its shares to decline," "Certain Relationships and Related Transactions," "Description of Other Indebtedness," and "Description of the Notes," insofar as they describe charter documents, contracts, statutes, rules and regulations and other legal matters, constitute an accurate summary thereof in all material respects; (ix) The statements made in the Offering Memorandum under the caption "Certain United States Federal Tax Considerations," insofar as they purport to constitute summaries of matters of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects; (x) This Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors; and (xi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors and, assuming that the Registration Rights Agreement is the valid and legally binding obligation of the Initial Purchaser and Non-Delaware Guarantors, constitutes a valid and legally binding obligation of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms. (xii) Except as specifically disclosed in the Offering Memorandum, the issue and sale of the Notes and Guarantees being delivered on such Delivery Date by the Company and the Guarantors and the compliance by the Company and the Guarantors, as applicable, with all of the provisions of this Agreement and the Indenture and the consummation of the transactions contemplated hereby and thereby will not breach or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed as an exhibit to a document incorporated by reference in the Offering Memorandum ("Exchange Act Documents") nor will such actions violate the Certificate of Incorporation or By-Laws or other organizational documents of the Company or the Delaware Guarantors, or any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law by any court or governmental agency or body or court having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets; and no consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware Limited Liability Company Act or Delaware General Corporation Law or, to such counsel's knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law is required for the issue and sale of the Notes by the Company (and the guarantees of such Notes by the Guarantors), except for such consents, approvals, authorizations, registrations or qualifications as may be required state securities or Blue Sky laws in connection with the purchase and distribution of the Notes and Guarantees by the Initial Purchaser. The opinions set forth in this paragraph are based upon our consideration of only those statutes, rules and regulations which, in such counsel's experience, are normally applicable to securities underwriting transactions. (xiii) No registration of the Notes under the Securities Act and no qualification of the Indenture under the Trust Indenture Act is required for the offer and sale of the Notes by the Company to the Initial Purchaser or the reoffer and resale of the Notes by the Initial Purchaser to the Initial Purchaser thereform solely in the manner contemplated by the Offering Memorandum, the Purchase Agreement and the Indenture. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States and the laws of the State of New York and the Delaware General Corporation Law. Such counsel shall also have furnished to the Initial Purchaser a written statement, addressed to the Initial Purchaser and dated the Delivery Date. Such counsel has not independently verified the accuracy, completeness or fairness of the statements made or included in the Offering Memorandum and take no responsibility therefor, except as and to the extent set forth in paragraphs (viii) and (ix) above. In the course of the preparation by the Company of the Offering Memorandum (excluding the Exchange Act Documents), such counsel participated in conferences with certain officers and employees of the Company, with representatives of PricewaterhouseCoopers, LLP and with counsel to the Company. Based upon such counsel's examination of the Offering Memorandum (including the Exchange Act Documents), such counsel's investigations made in connection with the preparation of the Offering Memorandum (excluding the Exchange Act Documents) and such counsel's participation in the conferences referred to above, such counsel has no reason to believe that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final~~ Offering Memorandum, ~~as of its date or~~ including the ~~date of such opinion, included or includes~~ Exchange Act Documents contains any untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~. (ii) the Company and~~ , except that in each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where case such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for need not express belief with respect to ~~such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to~~ the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium financial statements or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act financial data contained in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or ~~any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or~~ incorporated ~~in the Final Memorandum~~therein by reference. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (L 3 Communications Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from ▇▇▇▇~~the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Kirk▇▇▇▇ ~~Chance US LLP~~& ▇lli▇, ~~counsel~~ ▇▇unsel for the Company, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of The Company is a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly corporation existing ~~as corporations~~ in good standing under the laws of ~~their respective jurisdictions~~ the State of ~~incorporation and are duly qualified to transact business as foreign corporations and are in good standing under~~ Idaho. (ii) The Company has the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full corporate power and authority to ~~own~~enter into, ~~lease~~ execute, deliver and ~~operate their respective properties and assets and conduct their respective businesses as described in~~ perform its obligations under the ~~Final Memorandum~~Notes, ~~and~~ the ~~Company has corporate power to enter into~~ Exchange Notes, the Private Exchange Notes, Exchange Debentures, Indenture, the Registration Rights Agreement, this Agreement, the ~~Registration Rights Agreement~~ Exchange Indenture and the ~~Indenture~~ Other Agreements, including, without limitation, the corporate power to issue, sell and ~~to carry out all the terms and provisions hereof and thereof and of~~ deliver the Notes ~~to be carried out~~ and Preferred Stock as contemplated by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;this Agreement. (iii) The Company's Board of Directors has adopted by requisite vote the ~~statements set forth under~~ resolutions necessary to authorize the ~~heading “Description~~ Company's execution, delivery and performance of ~~Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and~~ the Indenture, ~~provide a fair summary~~ the Certificate of ~~such provisions;~~ Designation, the Registration Rights Agreement, this Agreement, the Exchange Indenture and the ~~statements~~ Other Agreements, and the pricing advisor appointed by the Company's Board of Directors has approved the price and interest rate set forth ~~under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to~~ therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;. (iv) ~~the execution and delivery of this Agreement~~ The Notes have each been duly ~~authorized by all necessary corporate action of the Company~~ and ~~the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly~~ validly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery ~~thereof~~ of the Indenture by the ~~Trustee~~Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute Notes under the Indenture and will constitute the valid and legally binding obligations of the Company and the Notes and the Indenture will each be ~~a legal, valid and binding agreement of the Company,~~ enforceable against the Company in accordance with ~~its terms~~ their terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights and remedies generally ~~from time to time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in ~~effect~~a proceeding in equity or at law)~~. The Indenture meets the requirements for qualification under the TIA~~. (viv) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes ~~are~~ have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the ~~Trustee~~ Trus- tee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), the Exchange Notes and Private Exchange Notes will be constitute Notes under the ~~legal~~Indenture, will constitute the valid and legally binding obligations of the ~~Company,~~ Company and will be enforceable against the Company in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights and remedies generally ~~from time to time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in ~~effect~~a proceeding in equity or at law). (~~viii~~vi) ~~the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has~~ The Exchange Debentures have been duly and validly authorized by the Company and, when executed by the Company, and authenticated by the Trustee in accordance with the terms of the Exchange Indenture, will constitute Exchange Debentures under the Exchange Indenture and will constitute the valid and legally binding obligations of the Company and the Exchange Debentures and the Exchange Indenture will each be enforceable against the Company in accordance with their terms, except that enforceability thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and remedies generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law). (vii) When duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers~~Purchaser), the Registration Rights Agreement will ~~be a legal,~~ constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that (~~subject, as~~ A) the enforcement thereof may be subject to ~~enforcement of remedies, to applicable~~ (i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting creditors’ rights generally from time to time~~ now or hereafter in effect relating to creditors' rights and ~~except that~~ remedies generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (viii) When executed by the Company, the Other Agreements will constitute valid and legally binding agreements of the Company enforceable against the Company in accordance with their terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and remedies generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations. (ix) The statements in the ~~execution~~ Final Memorandum under the headings "Description of Notes," "Description of the Senior Exchangeable Preferred Stock and ~~delivery by~~ Exchange Debentures" and "Exchange Offer; Registration Rights," insofar as such statements purport to summarize certain provisions of the Indenture, the Notes, the Certificate of Designation, the Preferred Stock, the Exchange Indenture, the Exchange Debentures and the Registration Rights Agreement and subject to the limitations contained in such statements, provide a fair and accurate summary in all material respects of such provisions of such agreements. (x) To the actual knowledge of such counsel, no legal or governmental proceedings are pending to which any of the Company ofor the Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary is subject which seeks to restrain, ~~and~~ enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold to the Initial Purchaser or the performance ~~by the Company~~ of ~~its obligations under,~~ this Agreement, the Registration Rights Agreement, the ~~Indenture and the Notes~~Indenture, the Exchange ~~Notes~~ Indenture or the Certificate of Designation. (xi) The Company's execution and ~~the Private Exchange Notes, the issuance, offering and sale~~ delivery of ~~the Notes to the Initial Purchasers by the Company pursuant to~~ this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or the Certificate of Designation and the Indenture, and the performance of its agreements under this Agreement, the Registration Rights Agreement, the Certificate of Designation and the Indenture (~~y) conflict with or result in a breach or violation of any~~ including, without limitation, the issuance and sale of the ~~terms and provisions of,~~ Securities to the Initial Purchaser) will not (i) violate the articles of incorporation or ~~constitute a default under, any indenture, mortgage, deed of trust, lease~~ bylaws (or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws similar organizational documents) of the Company or any of its ~~significant subsidiaries~~Subsidiaries, or (ii) constitute a material violation of any statute or ~~any judgment, decree, order,~~ governmental rule or ~~regulation~~ regulation, which in the experience of such counsel, is normally applicable both to the general business corporations that are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without such counsel having made any special investigations as to other laws and provided that such counsel need express no opinion with respect to (a) any laws, rules or regulations to which the Company may be subject as a result of the Initial Purchaser's legal or regulatory status or (b) any laws, rules or regulations relating to misrepresentation or fraud), or (iii) constitute or result in a breach or default under (or an event which with notice or the passage of time or both would constitute a default under) the terms or provisions of any ~~court~~ contract set forth on a schedule to such counsel's opinion, except (in the case of clauses (ii) and (iii) above) for any such conflict, breach, violation, default or ~~other~~ event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Such counsel's opinion in this paragraph need not address any impact the Company's actions may have under any financial maintenance covenants or tests in contracts specified in clause (iii) above, any consequences a default by the Company under this Agreement, the Registration Rights Agreement, the Certificate of Designation, the Exchange Indenture or the Indenture may have under any contract specified in clause (iii) above or any cross default provisions in the contracts specified in clause (iii) above. (xii) To the actual knowledge of counsel, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company of the Securities to the Initial Purchaser or ~~any arbitrator known~~ the consummation by the Company of the other transactions contemplated hereby, except such as may be required under the Act, the Exchange Act, the TIA and the Blue Sky laws, as to which such counsel need express no opinion, and ~~applicable to the Company or its significant subsidiaries;~~those which have previously been obtained. (xxiii) To the ~~Company is not an “investment company” and~~actual knowledge of such counsel, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any there are no legal or governmental proceedings ~~pending~~ involving or ~~threatened to which~~ affecting the Company or the Subsidiaries that would cause such counsel to conclude that such proceeding is required by Item 103 of Regulation S-X to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum, nor are there any ~~of its subsidiaries is a party~~ material contracts or to other documents which ~~the property of the Company or any of its subsidiaries is subject that~~ would be required to be described in a prospectus pursuant to the Act that are not described in the Final ~~Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final~~ Memorandum. (~~xii~~xiv) ~~commencing with the Company’s taxable year ended December 31, 1998,~~ None of the Company ~~was organized~~ or the Subsidiaries is, or immediately after the sale of the Securities to be sold to the Initial Purchaser and ~~has operated~~ the application of the proceeds from such sale (as described in ~~conformity with~~ the ~~requirements for qualification as a real estate investment trust (“REIT”)~~ Final Memorandum under the ~~Code~~caption "Use of Proceeds") will be, ~~and~~ an "investment company" as such term is defined in the ~~Company’s present and proposed method~~ Investment Company Act of ~~operation~~1940, as ~~represented by the Company, will permit the Company to continue to so qualify~~amended. (~~xiii~~xv) No registration under the Act of the ~~Notes~~ Securities is required in connection with the sale of the ~~Notes~~ Securities to the Initial ~~Purchasers~~ Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the ~~Notes~~ Securities by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such ~~Notes~~ Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or (B) that the offer or sale of the ~~Notes~~ Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy and completeness of the Initial ~~Purchasers’~~ Purchaser's representations in Section 8 8, and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such ~~Notes~~ Securities to the Initial ~~Purchasers~~ Purchaser and the initial resale thereof and (iii) the due performance by the Initial ~~Purchasers~~ Purchaser of the agreements set forth in Section 8 hereof~~. In rendering any such opinion~~. (xvi) Neither the sale, ~~such counsel may rely~~issuance, ~~as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers~~ execution or delivery of the ~~Company and public officials and, as to matters involving~~ Securities nor the application of ~~laws~~ the net proceeds therefrom as described in the Final Memorandum under the caption "Use of ~~any jurisdiction other than the State of New York~~ Proceeds" will violate Regulation G, T, U or ~~the United States or the General Corporation Law~~ X of the ~~State~~ Board of ~~Delaware~~Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, ~~to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇~~Kirk▇▇▇▇ ~~LLP. An opinion of~~ & ▇lli▇ ▇▇▇~~▇▇▇▇ LLP shall be delivered to~~ ll additionally state that it has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial ~~Purchasers~~ Purchaser and counsel for the Initial ~~Purchasers covering~~ Purchaser, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(x)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). In rendering such opinion, Kirk▇▇▇▇ & ▇lli▇ ▇▇▇ll have received and may rely upon such certificates and other documents and information as they may reasonably ~~requested by~~ request to pass on such matters. In addition, in rendering their opinion, Kirk▇▇▇▇ & ▇lli▇ ▇▇▇ state that their opinion is limited to matters of New York law and the Federal Law of the United States. The opinion of Kirk▇▇▇▇ & ▇lli▇ ▇▇▇cribed in this Section shall be rendered to the Initial ~~Purchasers~~Purchaser at the request of the Company and shall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) ~~The~~ On the Closing, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal~~ the opinion ~~from ▇▇▇▇~~of Ange▇▇ ▇~~▇▇▇▇▇ &~~ . ▇▇▇▇▇▇~~▇ LLP~~▇▇▇, ▇▇., ▇▇neral counsel for the ~~Initial Purchasers~~Company, dated ~~the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters~~ as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and of the Closing Date, in the form set forth below and ~~substance~~ otherwise reasonably satisfactory to the Initial Purchaser and counsel for the Initial ~~Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board~~Purchaser, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers~~ to the effect that: (i1) The Company has been duly incorporated and is validly existing under the ~~representations and warranties~~ laws of the ~~Company in this Agreement are true~~ State of Idaho, with corporate power and ~~correct~~ authority to own, lease and operate its assets and properties and conduct its business as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given described in the Final Memorandum ~~(exclusive~~ and to enter into and perform its obligations under this Agreement and each of ~~any amendment or supplement thereto), neither~~ the Other Agreements; the Company ~~nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity~~is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not ~~covered by insurance~~result in a Material Adverse Effect; (2) The Company has the authorized, ~~or from any labor dispute or any legal or governmental proceeding,~~ issued and ~~there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change,~~ outstanding capitalization set forth in the ~~condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results~~ Final Memorandum; all of ~~operations~~ the outstanding shares of capital stock of the Company and the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or ~~any~~ similar rights; except as set forth in the Final Memorandum, all of ~~its subsidiaries~~the outstanding shares of capital stock of the Subsidiaries are owned, ~~taken as a whole~~directly or indirectly, ~~except in each case as described in or contemplated~~ by the ~~Final Memorandum (exclusive~~ Company, free and clear of ~~any amendment or supplement thereto). (e) Subsequent~~ all perfected security interests and, to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies knowledge of such ~~opinions~~counsel, ~~certificates~~free and clear of all other liens, ~~letters~~encumbrances, equities and ~~documents in such quantities as the Initial Purchasers shall reasonably request.~~claims or restrictions on transferability (other tha

Appears in 1 contract

Sources: Purchase Agreement (McMS Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Representative on behalf of the several Initial Purchasers to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject~~subject to the accuracy, in ~~the Initial Purchasers’ sole discretion~~all material respects, ~~to the accuracy~~ of the representations and warranties of the Company ~~contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~herein, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~performance, ~~to the performance~~ in all material respects, by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Required Loan Documents in respect of the Commercial Loans shall have been delivered to the Trustee pursuant to and as required by the Sale and Servicing Agreement. (b) The Initial Purchasers shall have received a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company~~certificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer, Treasurer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that:, to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has ~~no reason~~ complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (~~other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion~~A) the ~~Final Memorandum~~Time of Sale Information, as of ~~its date or~~ the ~~date~~ Time of ~~such opinion~~Sale, ~~included or includes~~ contained any untrue statement of a material fact or ~~omitted~~ omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or any Additional Offering Document contained or contains an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) The Class A-1 Notes and the ~~Company and~~ Class A-2 Notes shall each ~~of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ have been ~~duly organized~~ rated no less than “Aaa” by ▇▇▇▇▇’▇, “AAA” by S&P, and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than “Aa2” by ▇▇▇▇▇’▇, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by ▇▇▇▇▇’▇, “A” by S&P and “A” by Fitch, and the Class D Notes shall have been rated no less than “Baa1” by ▇▇▇▇▇’▇, “BBB” by S&P and “BBB+” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the ~~Company pursuant~~ date of delivery thereof, in form and substance satisfactory to ~~this Agreement,~~ the ~~compliance by the Company with the other provisions of this Agreement and the consummation~~ Representative on behalf of the ~~other transactions herein contemplated do not (x) require the consent~~Initial Purchasers, ~~approval, authorization, registration or qualification of or~~ with ~~any governmental authority, except such as have been obtained or made (~~respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) ~~commencing with~~ Initial Purchasers shall have received an opinion, dated the ~~Company’s taxable year ended December 31~~Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of ~~operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes~~ in-house counsel to the ~~Initial Purchasers as contemplated by this Agreement~~ Trustee, in form and ~~the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior~~ substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers~~’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the~~ . (f) The Initial Purchasers ~~and the initial resale thereof and (iii) the due performance by the Initial Purchasers~~ shall have received legal opinions of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇Winston & ▇▇▇▇▇▇ LLP~~. An opinion~~ , counsel to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of ~~▇▇▇▇▇▇▇ LLP shall be delivered to~~ the Initial Purchasers and ~~counsel for~~ (ii) with respect to certain “true sale” and “non–consolidation” issues in form and substance satisfactory to the ~~Initial Purchasers covering matters reasonably requested by~~ Representative on behalf of the Initial Purchasers~~. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date~~. (bg) The Initial Purchasers shall have received ~~a legal~~ an opinion ~~from~~ of ▇~~▇▇▇▇▇~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel ~~for~~ to the ~~Initial Purchasers, dated~~ Company and the ~~Closing Date~~Trust Depositor, with respect to certain ~~legal matters relating~~ “perfection issues” in form and substance satisfactory to ~~this Agreement and such other related matters as~~ the Representative on behalf of the Initial Purchasers. (h) The Initial Purchasers ~~may reasonably require. In rendering such opinion,~~ shall have received opinions of ▇▇▇▇▇▇ ▇▇▇▇▇~~▇ & ▇▇▇▇~~▇▇▇ ~~LLP shall have received~~ LLP, counsel to the Owner Trustee and ~~may rely upon such certificates~~ the Trust, with respect to certain trust matters and ~~other documents~~ with respect to certain “perfection issues,” in each case in form and ~~information as it may reasonably request~~ substance satisfactory to ~~pass upon such matters~~the Representative on behalf of the Initial Purchasers. (ci) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and its counsel ~~for the Initial Purchasers. The Company shall furnish to the Initial Purchasers~~ such ~~conformed copies of such opinions~~further information, ~~certificates, letters,~~ certificates and documents ~~in such quantities~~ as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel. (l) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Sources: Purchase Agreement (NewStar Financial, Inc.)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from ▇~~the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇ ~~Chance US~~ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the ~~Company~~Issuers, ~~dated~~ in form and substance reasonably satisfactory to counsel for the ~~Closing Date~~Initial Purchasers, substantially to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light Each of the ~~circumstances under which they were made, not misleading. (ii) the Company~~ Issuers and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are~~ Guarantors is validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ the State of ~~incorporation~~ Delaware and ~~are duly qualified to transact business as foreign corporations and are in good standing under~~ has the ~~laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material~~ requisite corporate or limited liability ~~or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ company power and authority to ~~own, lease and operate their respective~~ own its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the Final Memorandum. Relying solely on good standing certificates issued by the secretaries of state, each Issuer and Guarantor is duly qualified to do business as a foreign corporation or limited liability company, as the ~~Company has corporate power~~ case may be, in good standing in the jurisdictions set forth opposite their respective names on a schedule annexed to ~~enter into this Agreement~~such opinion as of the dates set forth on such schedule. (ii) Based solely on such counsel's review of the membership interest transfer ledger of the Parent, the ~~Registration Rights Agreement~~ Parent has the issued and outstanding capitalization set forth in the ~~Indenture~~ first paragraph under the heading "Security Ownership of Certain Beneficial Owners and ~~to carry out all~~ Management" in the ~~terms and provisions hereof and thereof and of the Notes to be carried out by it~~Final Memorandum; all of the ~~issued and~~ outstanding ~~shares of capital stock of each~~ equity interests of the ~~Company’s significant subsidiaries~~Issuers and the Guarantors reflected in the stock or membership interest transfer ledgers of the Issuers and the Guarantors have been validly issued, and are fully paid and nonassessable and, to the knowledge of such counsel, were not issued in violation of any contractual preemptive or similar rights; except as ~~otherwise~~ disclosed in the Final Memorandum, based solely on such counsel's review of the membership interest transfer ledger or stock transfer ledger of the Issuers and the Subsidiary Guarantors, as applicable, all of the outstanding equity interests of the Issuers and the Subsidiary Guarantors are owned of record, directly or indirectly, by the Parent, and, to such counsel's knowledge, other than a pledge of the outstanding equity interests of the Issuers and the Guarantors to the lenders under the Amendment to the Credit Agreement, free and clear of all perfected security interests. (iii) Except as set forth in the Final Memorandum, ~~are owned beneficially by the Company free and clear of any perfected security interests or,~~ to the ~~best~~ knowledge of such ~~counsel~~counsel (A) no options, warrants or other rights to purchase from any Issuer or Guarantor shares of capital stock or membership interests in any such Issuers or Guarantor are outstanding, (B) no agreements or other ~~security interests~~obligations to issue, ~~liens~~or other rights to convert any obligation into, ~~encumbrances~~or exchange any securities for, ~~equities~~ capital stock or ~~claims~~membership interests in any Issuer or Guarantor are outstanding and (C) no holder of securities of any Issuer or Guarantor (other than a holder of Notes, ~~except for pledges of subsidiary stock~~ Exchange Notes or Private Exchange Notes) is entitled to have such securities registered under ~~debt instruments;~~a registration statement filed by the Issuers pursuant to the Registration Rights Agreement. (~~iii~~iv) Each of the ~~statements set forth~~ Issuers and the Guarantors has all requisite corporate or limited liability company power and authority to execute and deliver and perform its obligations under the ~~heading “Description of~~ Indenture, the Notes~~” in~~ , the ~~Final Memorandum, insofar as such statements purport to summarize certain provisions of the~~ Exchange Notes and the ~~Indenture, provide a fair summary of such provisions~~Private Exchange Notes; ~~and~~ the ~~statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar~~ Indenture complies as ~~such statements constitute a summary of the legal matters, documents or proceedings referred~~ to ~~therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings~~ form in all material respects ~~as would be required to be disclosed in a prospectus pursuant to~~ with the ~~Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action~~ requirements of the ~~Company and~~ TIA; the ~~Agreement~~ Indenture has been duly and validly authorized, executed and delivered by the ~~Company; (v)~~ Issuers and the ~~execution~~ Guarantors and ~~delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company~~ (assuming the due authorization, execution and delivery thereof by the Trustee), ) constitutes the ~~Indenture will be a legal,~~ valid and legally binding agreement of each of the ~~Company~~Issuers and the Guarantors, enforceable against each of the ~~Company~~ Issuers and the Guarantors in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect). The Indenture meets~~ and (ii) general principles of equity and the ~~requirements for qualification under~~ discretion of the ~~TIA~~court before which any proceeding therefor may be brought. (viv) The Notes are in the form contemplated by the Indenture. The Notes have each been duly ~~authorized by all necessary corporate action of the Company and~~and validly authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the ~~Company~~ Issuers and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Issuers, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder~~ , and enforceable against the Issuers in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of ~~securities~~ equity and the discretion of the ~~Company has~~ court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;proceeding therefor may be brought. (~~vii~~vi) ~~the~~ The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the ~~Company~~Issuers, ~~and~~ and, when ~~the Exchange Notes and the Private Exchange Notes are~~ duly executed and delivered by the ~~Company~~ Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Issuers, entitled to the benefits of the Indenture, and enforceable against the Issuers in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (vii) The Guarantees are in the form contemplated by the Indenture. The Guarantees have been duly and validly authorized executed and delivered -18- by each of the Guarantors and, when the Notes are authenticated by the Trustee in accordance with the provisions of the Indenture, (a) the Guarantees and (b) the guarantees of the Exchange Notes and the Private Exchange Notes will have been duly and validly authorized by each of the Guarantors and when duly executed and delivered by the Guarantors (in accordance with the terms of the Indenture, and when the Exchange Notes or the Private Exchange Notes, as the case may be, are authenticated by the Trustee in accordance with the provisions of the Indenture), in each case (a) and (b), will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of the Guarantors, entitled to ~~time~~ the benefits of the Indenture and enforceable against the Guarantors in ~~effect)~~accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (viii) Each of the ~~Company~~ Issuers and the Guarantors has all requisite corporate or limited liability company power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by each of the ~~Company~~ Issuers and the Guarantors and (assuming due authorization, execution and delivery thereof by the ~~Initial Purchasers), will be a legal,~~ other parties thereto) constitutes the valid and legally binding agreement of each of the ~~Company~~Issuers and the Guarantors, enforceable against the ~~Company~~ Issuers and the Guarantors in accordance with its ~~terms~~ terms, except that (~~subject, as~~ A) the enforcement thereof may be subject to ~~enforcement of remedies, to applicable~~ (i) bankruptcy, insolvency, fraudulent conveyance, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect~~ and ~~except that~~ (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) Each of the ~~execution~~ Issuers and ~~delivery~~ the Guarantors has all requisite corporate and/or other limited liability company power and authority to execute, deliver and perform their obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the ~~Company of~~Issuers and the Guarantors of the transactions contemplated hereby have been duly and validly authorized by the Issuers and the Guarantors. This Agreement has been duly executed and delivered by the Issuers and the Guarantors. (x) The statements under the captions "Description of Certain Indebtedness," "Description of the Notes," and "Exchange Offer; Registration Rights" in the Final Memorandum insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings, and the statements made in the Final Memorandum under the heading "Certain United States Federal Income Tax Considerations," insofar as such statements summarize certain federal income tax laws of the United States, constitute a fair summary of the principal U.S. federal income tax consequences of an investment in the Notes. (xi) To the knowledge of such counsel, except as described in the Final Memorandum, no legal or governmental proceedings are pending or threatened that seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes hereunder or the consummation of the other transactions described in the Final Memorandum under the caption "Use of Proceeds." (xii) The execution, delivery and performance by ~~the Company~~ each Issuer and Guarantor of ~~its obligations under,~~ this Agreement, the Indenture, the Registration Rights ~~Agreement~~Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the ~~Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering~~ issuance and sale of the Notes to the Initial ~~Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do~~ Purchasers) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) after giving effect to the effectiveness of the Amendment annexed to such opinion and the application of the proceeds from the issuance and sale of the Notes as described in the Final Memorandum, the terms ~~and~~ or provisions ofof any Contract listed on a schedule reasonably acceptable to the Initial Purchasers, except for any such conflict, breach, violation, default or event that would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws, certificate of formation or operating agreement, as applicable, of any Issuer or Guarantor, or ~~constitute a default under, any indenture, mortgage, deed of trust, lease~~ (iii) (assuming compliance with all applicable state securities or ~~other material agreement or instrument, known to such counsel, to which~~ "Blue Sky" laws and assuming the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws accuracy of the ~~Company or~~ representations and warranties of the Initial Purchasers in Section 8 hereof) any ~~of its significant subsidiaries~~statute, ~~or any statute or any~~ judgment, decree, order, rule or regulation known to and believed by such counsel to be normally applicable to transactions of the type contemplated by this Agreement, the Indenture and the Registration Rights Agreement, except for any such conflict, breach, default or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (xiii) No consent, approval, authorization or order of any ~~court or other~~ governmental authority is required for the issuance and sale by the Issuers of the Notes to the Initial Purchasers or ~~any arbitrator known~~ the consummation by the Issuers of the other transactions contemplated hereby, except such as may be required under Blue Sky or state securities laws, as to which such counsel need express no opinion, and ~~applicable to the Company or its significant subsidiaries;~~those which have previously been obtained. (xxiv) ~~the Company is not an “investment company” and, after~~ After giving effect to the ~~Offering~~ sale of the ~~Notes~~ Securities to be sold hereunder and the application of the proceeds ~~therefrom~~from such sale (as described in the Final Memorandum under the caption "Use of Proceeds"), ~~will not be~~ none of the Parent, the Issuers or the Subsidiary Guarantors is an “"investment company”, " as such term is defined in the ~~1940 Act; and (xi) such counsel does not know~~ Investment Company Act of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes1940, ~~regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum~~as amended. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiiixv) No registration under the Act of the ~~Notes~~ Securities is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers ("QIBs") as defined in Rule 144A promulgated under the Act ~~(“QIBs”)~~ or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the ~~Company~~ Issuers and the Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof~~. In rendering any such opinion, such counsel may rely, as to matters of fact, to~~ . (xvi) Neither the ~~extent such counsel deems proper, on certificates of responsible officers~~ consummation of the ~~Company and public officials and~~transactions contemplated by this Agreement nor the sale, ~~as to matters involving the application of laws of any jurisdiction other than the State of New York~~ issuance, execution or ~~the United States or the General Corporation Law~~ delivery of the ~~State~~ Securities will violate Regulation T, U or X of ~~Delaware, to~~ the ~~extent satisfactory in form and scope to counsel for~~ Board of Governors of the ~~Initial Purchasers, upon the~~ Federal Reserve System. The opinion of ▇▇▇▇▇▇▇ ~~LLP~~▇▇▇▇ & ▇▇▇▇▇ LLP may be subject to customary exceptions, assumptions and qualifications reasonably acceptable to the Initial Purchasers. An At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP shall additionally state that it has participated in conferences with officers and other representatives of the Parent and the Issuers, representatives of the independent public accountants for the Parent and the Issuers, representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(x)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Company's books and records included in the Final Memorandum). The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP described in this Section shall be ~~delivered~~ rendered to the Initial Purchasers at the request of the Issuers and ~~counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers~~shall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the ~~Registration Rights Agreement executed by the Company~~ opinion, in form and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are substance satisfactory ~~in all material respects~~ to the Initial ~~Purchasers~~ Purchasers, dated as of the Closing Date and ~~counsel for~~ addressed to the Initial Purchasers~~. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions~~, ~~certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.~~of

Appears in 1 contract

Sources: Purchase Agreement (Aas Capital Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ Purchaser hereunder are subject to the continuing accuracy of the representations and warranties of the Company ~~contained~~ herein as of the date hereof and as of ~~each~~ the Closing ~~Date,~~ Date as if they had been made on and as of ~~each~~ the Closing Date~~, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to~~ ; and the performance by the Company on and as of the Closing Date of its covenants and ~~agreements~~ obligations hereunder and to the following ~~additional~~ further conditions: (a) On The Initial Purchaser shall not have advised the ~~Closing Date,~~ Company that the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Offering Memorandum, ~~as of its date~~ or ~~the date of such opinion~~any supplement or amendment thereto, ~~included or includes any~~ contains an untrue statement of ~~a material~~ fact ~~or omitted~~ which is material, or omits to state ~~any~~ a fact which is material ~~fact~~ and is required to be stated therein or is necessary ~~in order~~ to make the ~~statements therein~~statements, in ~~the~~ light of the circumstances under which they were made, not misleading. No order suspending the sale of the Preferred Stock in any jurisdiction shall have been issued on the Closing Date and no proceedings for that purpose shall have been instituted or shall be contemplated. (iib) At Closing Date, the Initial Purchaser shall have received the favorable opinion of Cool▇▇ ▇▇▇ward LLP, counsel to the Company, dated the Closing Date, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to Piper & Marbury L.L.P., to the effect that: (i) The Company ~~and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are~~ is a corporation validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ the State of ~~incorporation and are duly qualified to transact business as foreign corporations and are in good standing under~~ Delaware. (ii) The Company has the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full corporate power and corporate authority to own, lease and operate ~~their respective properties and assets and conduct their respective businesses~~ its business as described in the ~~Final~~ Offering Memorandum~~, and~~ . (iii) The outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and to such counsel's knowledge were not issued in violation of any preemptive rights. The Preferred Stock has ~~corporate power to enter into~~ been duly authorized and, upon issuance and delivery against payment therefor, in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable. (iv) The shares of Common Stock initially issuable upon conversion of the Preferred Stock (i) have been duly authorized and validly reserved for issuance upon such conversion, and such shares, when issued and delivered upon such conversion in the manner provided for by the Preferred Stock, will be validly issued, fully paid and non-assessable and (ii) will conform to the description thereof contained in the Offering Memorandum. (v) The Preferred Stock and the shares of Common Stock issuable upon conversion of the Preferred Stock, to the best of such counsel's knowledge, are not subject to preemptive or other similar rights. (vi) There is no restriction upon the voting or transfer of any capital stock of the Company pursuant to the Company's Certificate of Incorporation or by-laws, in each case as amended, or in any agreement or other instrument to which the Company is a party of which such counsel has knowledge except as described in the Offering Memorandum; and no holders of securities of the Company have rights to the registration thereof under any agreement known to such counsel except as described in the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Offering Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;. (~~iii~~vii) ~~the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes~~ This Agreement and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Registration Rights Agreement have been duly authorized by all necessary corporate action on the part of the ~~Company~~ Company, and ~~the Agreement has~~ have been duly executed and delivered by the Company;. (vviii) Assuming the ~~execution and delivery~~ accuracy of the ~~Indenture have been duly authorized~~ Company's representations and warranties set forth in subparagraph (a) of Section 1, the accuracy of the Initial Purchaser's representations and warranties set forth in subparagraphs (b) and (c) of Section 2, and compliance with the procedures set forth in Section 7 hereof, and in reliance upon the acknowledgments, representations and agreements made, or deemed to be made, by each purchaser of Preferred Stock as set forth in the Offering Memorandum, the offer and sale of the Preferred Stock to the Initial Purchaser or the initial offer and resale of the Preferred Stock by the Initial Purchaser, in each case, in the manner contemplated by this Agreement and the Offering Memorandum are exempt from the registration requirements of the Securities Act it being understood that no opinion is expressed as to any subsequent resale of any such Preferred Stock. (ix) The Preferred Stock, the Common Stock issuable upon the conversion of the Preferred Stock and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Offering Memorandum, and the form of certificate used to evidence the Preferred Stock is in due and proper form under Delaware law. (x) To the best of such counsel's knowledge, and except as disclosed in the Offering Memorandum, there is no action, suit or proceeding at law or in equity or by or before any governmental instrumentality or other agency now pending or threatened against the Company which would require disclosure in the Offering Memorandum. (xi) The information in the Offering Memorandum under the caption "Description of Capital Stock" to the extent that it constitutes matters of law, summaries of legal matters, the Company's Certificate of Incorporation, bylaws or legal proceedings, or legal conclusions, fairly summarizes the matters referred to therein. To the best of such counsel's knowledge, there are no statutes or regulations that are required to be described in the Offering Memorandum that are not described as required. (xii) To the best of such counsel's knowledge, there are no franchises, contracts, indentures, mortgages, loan or credit agreements, notes, leases or other instruments required to be described or referred to in the Offering Memorandum, other than those described or referred to therein. (xiii) To the best of such counsel's knowledge, no authorization, consent, approval of or qualification with, any governmental authority to required for the performance by the Company ~~and~~of its obligations under this Agreement or the Registration Rights Agreement, ~~when duly executed~~ except such as may be required under state or other blue sky laws in connection with the purchase and ~~delivered~~ distribution of the Preferred Stock (as to which we express no opinion) by the ~~Company~~ Initial Purchaser and except such as have been made or obtained. (~~assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be~~ xiv) The Registration Rights Agreement is a legal, valid and binding ~~agreement~~ obligation of the ~~Company,~~ Company enforceable against the Company in accordance with its ~~terms~~ terms, except (~~subject,~~ a) as to the enforcement ~~of remedies, to applicable~~ thereof may be limited by bankruptcy, ~~reorganization~~insolvency (including, ~~insolvency~~without limitation, all laws relating to fraudulent transfers), reorganizations, moratorium or ~~other~~ similar laws affecting enforcement of creditors’ ' rights generally ~~from time~~ and except as enforcement thereof is subject to ~~time~~ general principles of equity (regardless of whether enforcement is considered in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable a proceeding in ~~accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium~~ equity or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indentureat laws), ~~will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms~~ (~~subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii~~b) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or and contribution thereunder may be limited by federal ~~and~~ or state securities laws or the policies underlying such laws, and ~~public policy considerations)~~(c) subject to general equity principles and to limitations on the availability of equitable relief, including specific performance. (ixxv) ~~the execution~~ The Company is not and ~~delivery by the Company of~~will not become, ~~and the performance by the Company~~ as a result of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the ~~other~~ transactions ~~herein~~ contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by ~~the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with~~ the offer and sale of the ~~Notes by the Initial Purchasers~~ Preferred Stock, and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the net proceeds ~~therefrom~~therefrom as described in the Offering Memorandum, ~~will not be~~ an “"investment company”, " as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (~~xii~~c) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum On or ~~in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and~~ prior to the ~~commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement)~~Closing Date, the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers Purchaser shall have received ~~a legal opinion~~ from ~~▇▇▇▇▇▇ ▇▇▇▇▇▇~~ Piper & ~~▇▇▇▇▇▇▇ LLP~~Marbury L.L.P., counsel for the Initial ~~Purchasers~~Purchaser, ~~dated the Closing Date,~~ such opinion or opinions with respect to ~~certain legal matters relating to this Agreement~~ the validity of the Preferred Stock, the Underlying Stock, the Offering Memorandum and ~~such~~ other related matters as the Initial ~~Purchasers~~ Purchaser may ~~reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇~~ request and Piper & ~~▇▇▇▇▇▇▇ LLP~~ Marbury L.L.P. shall have received ~~and may rely upon~~ such ~~certificates and other documents~~ papers and information as they request to enable it ~~may reasonably request~~ to pass upon such matters. (cd) ~~The~~ Cool▇▇ ▇▇▇ward LLP shall state in the opinion letter contemplated by Section 6(b) that such counsel has participated in conferences with officers and other representatives of each of the Company and representatives of the independent public accountants for the Company and the Initial ~~Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated~~Purchaser, ~~respectively~~at which conferences the contents of the Offering Memorandum and related matters were discussed, and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Offering Memorandum and have made no independent check or verification thereof, on the basis of the foregoing, no facts have come to the attention of such counsel which has lead them to believe that the Offering Memorandum, as of its date ~~hereof~~ contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in light of the circumstances in which they were made, except that such counsel need express no opinion or belief with respect to the financial statements and related notes, the pro forma financial information and other financial, statistical or accounting data included the Offering Memorandum or excluded therefrom). (e) At the Closing Date, ~~in form and substance satisfactory to counsel for~~ the Initial ~~Purchasers. (d) The Company~~ Purchaser shall have ~~furnished or caused to be furnished to the Initial Purchasers at the Closing~~ received a certificate of ~~its Chairman~~ the Company signed by the principal executive officer and by the chief financial or chief accounting officer of the ~~Board~~Company, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to~~ in their capacities as such, dated the ~~Initial Purchasers~~ Closing Date, to the effect that each of such persons has carefully examined the Offering Memorandum, this Agreement and the Registration Rights Agreement, and that: (i) the representations and warranties of the Company in this Agreement and the Registration Rights Agreement are true and ~~correct~~ correct, as if made on and as of the Closing Date; , and the Company has ~~performed~~ complied with all agreements and covenants ~~and agreements~~ and satisfied all conditions contained in this Agreement and the Registration Rights Agreement on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the qualification or exemption from qualification of the Preferred Stock shall have been issued and no proceedings for that purpose shall have been commenced or, to the knowledge of the Company, be contemplated; (iii) since the date of the most recent financial statements included in the Offering Memorandum, there has been no material adverse change in the condition, financial or otherwise, results of operation or business of the Company, taken as a whole, except as set forth in the Offering Memorandum; (iv) none of the Offering Memorandum or any such amendment or supplement includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and (iiv) subsequent to the respective dates as of which information is given in the ~~Final Memorandum~~ Offering Memorandum: (~~exclusive of any amendment or supplement thereto), neither~~ a) the Company ~~nor any~~ has not incurred up to and including the Closing Date, other than in the ordinary course of its ~~subsidiaries~~ business, any material liabilities or obligations, direct or contingent, except as disclosed in the Offering Memorandum; (b) the Company has not paid or declared any dividends or other distributions on its capital stock; (c) the Company has not entered into any material transactions not in the ordinary course of business, except as disclosed in the Offering Memorandum; (d) there has not been any material change in the capital stock; (e) the Company has not sustained any material loss or ~~interference with their respective businesses~~ damage to its property or ~~properties from fire, flood, hurricane, accident or other calamity~~assets, whether or not ~~covered by insurance,~~ insured; and (f) there is no litigation which is pending or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in to the ~~condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results~~ best of ~~operations of~~ the Company's knowledge threatened against the Company or any affiliated party of ~~its subsidiaries~~any of the foregoing which would be reasonably likely to have a Material Adverse Effect and which is required to be set forth in an amended or supplemented Offering Memorandum which has not been set forth. (f) On or before the date hereof the Initial Purchaser shall have received a letter, ~~taken~~ dated such date, addressed to the Initial Purchaser and the Company in form and substance satisfactory in all respects to the Initial Purchaser and Piper & Marbury L.L.P., from Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Offering Memorandum including the following: (i) confirming that they are independent certified public accountants with respect to the Company within the meaning of the Securities Act and the Exchange Act and the applicable Rules and Regulations; (ii) stating that it is their opinion that the consolidated financial statements of the Company included in the Offering Memorandum or incorporated by reference therein comply as ~~a whole~~to form in all material respects with the applicable accounting requirements of the Securities Act; and (iii) stating that they have compared specific dollar amounts, ~~except~~ numbers of shares, percentages of revenues and earnings, statements and/or other financial information pertaining to the Company set forth in the Offering Memorandum in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures need not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement. (g) At the Closing Date, the Initial Purchaser shall have received from Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ a letter, dated as ~~described~~ of the Closing Date to the effect that they reaffirm that statements made in ~~or contemplated~~ the letter furnished pursuant to subsection (f) of this Section 6, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Date to the further effect that they have carried out procedures as specified in clause (iii) of subsection (f) of this Section 6 with respect to certain amounts, percentages and financial information as specified by the ~~Final~~ Initial Purchaser and deemed to be a part of the Offering Memorandum and have found such amounts, percentages and financial information to be in agreement with the records specified in such clause (~~exclusive of any amendment or supplement thereto~~iii). (eh) At the Closing Date, Piper & Marbury L.L.P. shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Preferred Stock as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Preferred Stock and with respect to the shares of Common Stock issuable upon conversion of the Preferred Stock as herein contemplated shall be satisfactory in form and substance to the Initial Purchaser and Piper & Marbury L.L.P. (i) The Preferred Stock shall have been approved by the National Association of Securities Dealers, Inc. for trading in the PORTAL market. (j) Trading in the Common Stock shall not have been suspended by the Nasdaq Stock Market (National Market) at any time after October 2, 1997. (k) Subsequent to the execution and delivery of this Agreement and ~~prior to~~ until the Closing ~~Date,~~ Date there shall not have occurred any ~~downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction~~ of the ~~possible change~~following: (i) trading in securities generally on the New York Stock Exchange, in the ~~rating accorded any of~~ American Stock Exchange, the ~~Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2~~Nasdaq Stock Market (National Market) ~~under~~ or the ~~Act. (f) The Indenture~~ over-the-counter market shall have been ~~executed and delivered by all the parties thereto. (g) On the Closing Date~~suspended or limited, ~~the Initial Purchasers~~ or minimum prices shall have ~~received the Registration Rights Agreement executed~~ been established on either of such exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in securities of the Company ~~and such agreement shall be~~ on any exchange or in ~~full force and effect at all times from and after~~ the ~~Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers~~ over-the-counter market shall have ~~received such further certificates, documents~~ been suspended or ~~other information as they may~~ (ii) any moratorium on commercial banking activities shall have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies been declared by Federal or New York State authorities or (iii) an outbreak or escalation of ~~such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.~~hostilities or a declaratio

Appears in 1 contract

Sources: Purchase Agreement (Bolder Technologies Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase ~~and pay for~~ the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder ~~and~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Notes in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated. (b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the financial condition, business, prospects, properties, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum (excluding any amendments or supplements thereto after the date hereof), which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum (excluding any amendments or supplements thereto after the date hereof) untrue in any material respect or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Notes. (c) The Initial Purchasers shall have received on the Closing Date a ~~legal~~ corporate opinion ~~from ▇~~of ▇▇▇▇▇▇▇ ~~Chance US LLP~~& Berlin, Chartered, counsel for the Company, dated the Closing ~~Date,~~ Date and addressed to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, ~~upon~~ in the form attached hereto as Exhibit A. (d) The Initial Purchasers shall have received on the Closing Date a regulatory opinion from ▇▇▇▇▇▇▇ & Berlin, Chartered, special regulatory counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form attached hereto as Exhibit B. (e) The Initial Purchasers shall have received on the Closing Date an opinion from Marcus & ▇▇▇▇▇▇▇▇, P.C., local counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form attached hereto as Exhibit C. (f) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ ~~LLP~~▇. ~~An opinion~~ ▇▇▇▇▇▇▇▇, Esq., Corporate Counsel of the Company, dated the Closing Date and addressed to the Initial Purchasers in the form attached hereto as Exhibit D. (g) The Initial Purchasers shall have received on the Closing Date opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~LLP shall be delivered to~~ (Australia) in the ~~Initial Purchasers and counsel for~~ form attached hereto as Exhibit E, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (Hong Kong) in the ~~Initial Purchasers covering matters reasonably requested by~~ form attached hereto as Exhibit F, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (Germany) in the ~~Initial Purchasers. References to~~ form attached hereto as Exhibit G, Coudert Freres (France) in the ~~Final Memorandum~~ form attached hereto as Exhibit H, TMI Associates (Japan) in ~~this subsection~~ the form attached hereto as Exhibit I, Stibbe Simont ▇▇▇▇▇▇▇ Duhot (aThe Netherlands) ~~shall include any amendment or supplement thereto prepared~~ in ~~accordance with~~ the ~~provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from~~ form attached hereto as Exhibit J, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (United Kingdom) in the form attached hereto as Exhibit K, Advokatfirman ▇▇▇▇▇▇▇ (Sweden) in the form attached hereto as Exhibit L and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (Switzerland) in the form attached hereto as Exhibit M, special regulatory counsel for the Company in each of the jurisdictions described above, each dated the Closing Date and addressed to you, as Initial Purchasers. (h) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, and addressed to the Initial Purchasers, with respect to certain ~~legal matters relating~~ matter referred to ~~this Agreement~~ above and such other related matters as the Initial Purchasers may ~~reasonably require. In rendering such opinion~~request. (i) The Initial Purchasers shall have received letters addressed to the Initial Purchasers, and dated the date hereof and the Closing Date from (i) KPMG Peat Marwick LLP, independant certified public accountants, (ii) KPMG, Chartered Accountants and Registered Auditors, independant certified public accountants and (iii) ▇▇▇▇▇▇ ▇▇▇~~▇▇▇~~ , Blakiston & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, ~~respectively~~P.A., independent certified public accountants, substantially in the ~~date hereof and the Closing Date, in form and substance satisfactory to counsel for~~ forms heretofore approved by the Initial Purchasers. (di) There shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt of the Company (other than in the ordinary course of business) from that set forth or contemplated in the Offering Memorandum (excluding any amendment or supplement thereto after the date hereof); (ii) there shall not have been, since the respective dates as of which information is given in the Offering Memorandum (excluding any amendment or supplement thereto after the date hereof), except as may otherwise be stated in the Offering Memorandum (excluding any amendment or supplement thereto after the date hereof), any material adverse change in the financial condition, business, prospects, properties, net worth or results of operations of the Company and the Subsidiaries taken as a whole; (iii) the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Offering Memorandum (excluding any amendment or supplement thereto after the date hereof); and (iv) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date, and the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of the Company (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(j) and in Section 7(k) hereof. (k) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date. (l) The Notes shall have been approved for trading on PORTAL. (m) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any class of securities of the Company, or (ii) it is reviewing its ratings assigned to any class of securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined. (n) The Company shall have furnished or caused to be furnished to the Initial Purchasers ~~at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ such further certificates and ~~its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct~~ documents as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall reasonably have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Companyrequested. All such opinions, certificates, letters and other documents ~~delivered pursuant to this Agreement~~ will ~~comply~~ be in compliance with the provisions hereof only if they are reasonably satisfactory in ~~all material respects~~ form and substance to the Initial Purchasers and counsel for the Initial Purchasers. ~~The~~ Any certificate or document signed by any officer of the Company and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers, shall ~~furnish~~ be deemed a representation and warranty by the Company to the Initial Purchasers ~~such conformed copies of such opinions, certificates, letters, and documents in such quantities~~ as to the ~~Initial Purchasers shall reasonably request~~statements made therein.

Appears in 1 contract

Sources: Purchase Agreement (Telegroup Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ respective obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements hereunder~~ obligations hereunder, and to each of the following additional terms and conditions: (a) ~~On the Closing Date, the~~ The Initial Purchasers shall not have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date,~~ discovered and disclosed to the ~~effect that: (i)~~ Company prior to or on such ~~counsel has no reason to believe~~ Delivery Date that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date~~ Offering Memorandum or ~~the date of such opinion, included~~ any amendment or ~~includes~~ supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material ~~fact or omitted~~ or omits to state any fact which is material ~~fact~~ and necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iib) All corporate proceedings and other legal matters incident to the ~~Company~~ authorization, form and ~~each~~ validity of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have been duly organized~~ Operative Documents and ~~are validly existing as corporations in good standing under~~ the ~~laws of their respective jurisdictions of incorporation~~ Offering Memorandum or any amendment or supplement thereto, and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ all other ~~jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability~~ legal matters relating to the ~~Company~~ Operative Documents and ~~its subsidiaries, taken as a whole;~~ the ~~Company and each of its significant subsidiaries have full power and authority~~ transactions contemplated thereby shall be reasonably satisfactory in all material respects to ~~own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ counsel to the ~~Final Memorandum~~Initial Purchasers, and the Company ~~has corporate power~~ shall have furnished to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel ~~and fairly present the information called for with respect to such legal matters,~~ all documents and ~~proceedings in all material respects as would be required~~ information that they may reasonably request to ~~be disclosed in a prospectus pursuant~~ enable them to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIApass upon such matters. (vic) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~▇▇▇, ~~counsel for the Initial Purchasers, dated the Closing Date, with respect~~ L.L.P. shall have furnished to ~~certain legal matters relating to this Agreement and such other related matters as~~ the Initial Purchasers ~~may reasonably require. In rendering such~~ their written opinion, ~~▇▇▇▇▇▇ ▇~~as counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in substantially the form attached hereto as Exhibit A. (d) The Initial Purchasers shall have received from Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~ ▇▇, counsel for the Initial Purchasers, such opinion or opinions, addressed to the Initial Purchasers, dated such Delivery Date, with respect to the issuance and sale of the Notes, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Company shall have ~~received and may rely upon~~ furnished to such ~~certificates and other~~ counsel such documents ~~and information~~ as ~~it may~~ they reasonably request for the purpose of enabling them to pass upon such matters. (ce) ~~The~~ At the time of execution of this Agreement, the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a ~~letter or letters dated, respectively, the date hereof and the Closing Date~~letter, in form and substance satisfactory to ~~counsel for~~ the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are an independent registered public accounting firm within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings. (df) With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letters"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are an independent registered public accounting firm within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter. (g) The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers ~~at the Closing~~ on such Delivery Date a ~~certificate of its Chairman~~ certificate, dated such Delivery Date and delivered on behalf of the ~~Board,~~ Company by its ~~President~~ chief executive officer or its ~~Chief Executive Officer~~ chief financial officer, in form and ~~its Chief Financial Officer~~ substance satisfactory to the Initial ~~Purchasers~~ Purchasers, to the effect that: (i) ~~the representations~~ The representations, warranties and ~~warranties~~ agreements of the Company in ~~this Agreement~~ Section 1 are true and correct as ~~if made on and as~~ of ~~the Closing~~ such Delivery Date; and the Company has ~~performed~~ complied with all ~~covenants and~~ its agreements ~~and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and~~contained herein; (ii) ~~subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither~~ Neither the Company nor any of its subsidiaries ~~has~~ shall have sustained since the date of the latest audited financial statements included in the Offering Memorandum (A) any ~~material~~ loss or interference with ~~their respective businesses or properties~~ its business from fire, ~~flood~~explosion, ~~hurricane, accident~~ flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any legal~~ court or governmental ~~proceeding~~action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto), and (B) since such date there has not been any ~~materially adverse change (including, without limitation, a~~ material change in ~~management~~ the capital stock or ~~control)~~long-term debt of the Company (other than the issuance of shares of the Common Stock as contemplated by the Offering Memorandum) or any of its subsidiaries, or any change, or any development involving a prospective ~~materially adverse~~ change, in or affecting the ~~condition (financial or otherwise)~~general affairs, management, ~~earnings, properties, business affairs or business prospects~~financial position, stockholders~~’ equity, net worth~~ ' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (iii) Such officer has carefully examined the Offering Memorandum and, in such officer's opinion (A) the Offering Memorandum, as of its date, did not include any untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum. (h) The Indenture shall have been duly executed and delivered by the Company and the Trustee and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee. (i) The Company and the Initial Purchasers shall have executed and delivered the Registration Rights Agreement (in form and substance satisfactory to the Initial Purchasers) and the Registration Rights Agreement shall be in full force and effect. (j) The NASD shall have accepted the Notes for trading on PORTAL. (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Offering Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, except as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto) and (ii) since such date there shall not have been any material change in the capital stock or long-term debt of the Company (other than the issuance of shares of the Common Stock as contemplated by the Offering Memorandum) or any of its subsidiaries, ~~taken~~ or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as ~~a whole~~set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto), ~~except~~ the effect of which, in ~~each~~ any such case as described in clause (i) or (ii), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Notes being delivered on such Delivery Date on the terms and in the manner contemplated by in the ~~Final~~ Offering Memorandum (exclusive of any amendment or supplement thereto). (el) Subsequent to the execution and delivery of this Agreement ~~and prior to the Closing Date,~~ there shall not have occurred any ~~downgrading~~of the following: (i) trading in securities generally on the New York Stock Exchange, ~~nor~~ Inc. ("NYSE"), the American Stock Exchange, the Nasdaq National Market or the over-the-counter market, or trading in any securities of the Company on any exchange (including the Nasdaq National Market) shall ~~any notice~~ have been ~~given~~ suspended or the settlement of such trading generally shall have been materially disrupted, or minimum prices shall have been established on any ~~intended~~ such exchange or ~~potential downgrading~~ market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by United States federal or New York State authorities; (iii) the United States shall have become engaged in hostilities, other than in Iraq and Afghanistan, there shall have been an escalation in hostilities involving the United States, or there shall have been a declaration of ~~any review for~~ a ~~possible~~ national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change ~~that does not indicate~~ in general economic, political or financial conditions, including without limitation as a result of terrorist activities after the ~~direction~~ date hereof, or the effect of international conditions on the ~~possible change~~financial markets in the United States shall be such as to make it, in the ~~rating accorded any~~ sole judgment of the ~~Company’s securities by~~ Initial Purchasers, impracticable or inadvisable to proceed with the offering or delivery of the Notes being delivered on such Delivery Date on the terms and in the manner contemplated in the Offering Memorandum (exclusive of any ~~“nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act~~amendment or supplement thereto). (fm) The ~~Indenture~~ Company shall have ~~been executed~~ furnished to the Initial Purchasers such further information, certificates and ~~delivered by all~~ documents as the ~~parties thereto~~Initial Purchasers may reasonably request to evidence compliance with the conditions set forth in this Section 5. (gn) On The members of the ~~Closing Date,~~ board of directors of the Company and the executive officers of the Company shall have furnished to the Initial Purchasers ~~shall have received~~ "lock-up" letters, covering a period of 60 days from the ~~Registration Rights Agreement executed by~~ date of the ~~Company~~ Offering Memorandum, in form and ~~such agreement shall be in full force and effect at all times from and after~~ substance satisfactory to the ~~Closing Date~~Initial Purchasers. (ho) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, ~~certificates~~letters, ~~letters~~ evidence and ~~documents delivered pursuant to~~ certificates mentioned above or elsewhere in this Agreement ~~will comply~~ shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory ~~in all material respects~~ to counsel to the Initial ~~Purchasers and counsel for the Initial~~ Purchasers~~. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request~~.

Appears in 1 contract

Sources: Purchase Agreement (Overstock Com Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall,~~ hereunder shall be subject, in ~~the Initial Purchasers’ sole~~ their discretion, to the ~~accuracy of the~~ condition that all representations and warranties and other statements of the Company ~~contained~~ herein ~~as of the date hereof~~ are, at and as of each ~~Closing Date~~Time of Delivery, ~~as if made on~~ true and ~~as of each Closing Date~~correct, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by~~ condition that the Company shall have performed all of its ~~covenants~~ obligations hereunder theretofore to be performed, and ~~agreements hereunder and to~~ the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, shall have furnished to you such opinion or opinions, dated ~~the Closing Date~~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 ~~opinion, ▇▇▇▇▇▇~~ matters; (b) Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ~~LLP~~ LLP, counsel for the Company, shall have ~~received~~ furnished to you its written opinion, dated such Time of Delivery, in form and ~~may rely upon such certificates and other documents and information as it may reasonably request~~ substance agreed to ~~pass upon such matters.~~by the parties prior to the date hereof; (c) ~~The Initial Purchasers~~ On the date of the Offering Memorandum concurrently with the execution of this Agreement and also at each Time of Delivery, ▇▇▇▇▇ & Young LLP shall have ~~received from PricewaterhouseCoopers LLP~~ furnished to you a letter or ~~letters dated~~letters, ~~respectively,~~ dated the ~~date hereof and the Closing Date~~respective dates of delivery thereof, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:you; (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither Neither the Company nor any of its subsidiaries ~~has~~ shall have sustained since the date of the latest audited financial statements included in the Pricing Memorandum any ~~material~~ loss or interference with ~~their respective businesses or properties~~ its business from fire, ~~flood~~explosion, ~~hurricane, accident~~ flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any legal~~ court or governmental ~~proceeding~~action, order or decree, otherwise than as set forth or contemplated in the Pricing Memorandum, and (ii) since the respective dates as of which information is given in the Pricing Memorandum there ~~has~~ shall not have been any ~~materially adverse change (including, without limitation, a~~ change in ~~management~~ the capital stock (other than the issuance or ~~control)~~grant of securities pursuant to employee equity incentive plans existing as of the date of this Agreement or pursuant to outstanding options, warrants or rights) or long‑term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective ~~materially adverse~~ change, in or affecting the ~~condition (financial or otherwise)~~general affairs, management, ~~earnings, properties, business affairs or business prospects~~financial position, stockholders’ ~~equity, net worth~~ equity or results of operations of the Company ~~or any of~~ and its subsidiaries, ~~taken~~ otherwise than as ~~a whole~~set forth or contemplated in the Pricing Memorandum, ~~except~~ the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in this Agreement and in each ~~case as described in or contemplated by~~ of the ~~Final Memorandum (exclusive of any amendment or supplement thereto).~~Pricing Disclosure Package and the Offering Memorandum; (e) ~~Subsequent to~~ On or after the ~~execution and delivery of this Agreement and prior to the Closing Date, there~~ Applicable Time (i) no downgrading shall ~~not~~ have occurred ~~any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change,~~ in the rating accorded ~~any of~~ the Company’s debt securities by any “nationally recognized statistical rating organization”, as ~~such~~ that term is defined ~~for purposes of Rule 436(g)(2~~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) ~~The Indenture~~ On or after the Applicable Time there shall not have ~~been executed~~ occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq Global Select Market; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and ~~delivered by all~~ in the ~~parties thereto.~~manner contemplated in the Pricing Disclosure Package and the Offering Memorandum; (g) On A number of shares of Common Stock equal to the ~~Closing Date~~Maximum Number of Underlying Securities shall have been duly listed, subject to notice of issuance, on the NYSE; (h) The Company shall have obtained and delivered to the Initial Purchasers executed copies of an agreement from each of the Company’s directors and executive officers listed in Schedule IV hereto, substantially to the effect set forth in Exhibit A hereof; (i) The Initial Purchasers shall have received an executed original copy of the ~~Registration Rights Agreement executed~~ Indenture; (j) The Securities shall be eligible for clearance and settlement through the facilities of DTC; (k) The Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsection (e) of this Section and as to such other matters as you may reasonably request; (i) All amounts outstanding under the Loan and Security Agreement, dated August 22, 2014 (as amended, the “Loan Agreement”)), by and between Silicon Valley Bank, the Company and Workiva International LLC, shall have been repaid (or caused to have been repaid) by the Company and ~~such agreement~~ the Loan Agreement shall ~~be in full force and effect at all times from and after the Closing Date.~~have been terminated; and (hj) ~~On or before the Closing Date, the Initial Purchasers and counsel for the~~ The Initial Purchasers shall have received ~~such further certificates~~(i) a certificate of ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ~~documents or other information as they may have reasonably requested from~~ Executive Vice President & Chief Financial Officer of the Company~~. All opinions~~, ~~certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are~~ in a form that is reasonably satisfactory ~~in all material respects~~ to the Initial ~~Purchasers~~ Purchasers, dated the date hereof, with respect to certain financial information contained in the Pricing Disclosure Package and ~~counsel for~~ (ii) a “bring-down” certificate of ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice President & Chief Financial Officer of the Company, in a form that is reasonably satisfactory to the Initial Purchasers~~. The Company shall furnish~~ , dated the Closing Date, with respect to certain financial information contained in the Offering Memorandum and to the ~~Initial Purchasers~~ effect that such ~~conformed copies of~~ officer reaffirms the statements made in the initial certificate furnished pursuant to subclause (i) with respect to such ~~opinions, certificates, letters, and documents~~ financial information contained in ~~such quantities as~~ the ~~Initial Purchasers shall reasonably request~~Pricing Disclosure Package.

Appears in 1 contract

Sources: Purchase Agreement (Workiva Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from ▇~~the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ~~Chance US~~ & ▇▇▇▇ LLP, counsel for the ~~Company~~Issuers, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light Each of the ~~circumstances under which they were made~~Company, ~~not misleading.~~ Aerosol Services Company, Inc. (ii"AEROSOL") ~~the Company~~ and ~~each of its “significant subsidiaries”~~ Kolmar Laboratories, Inc. (~~as defined in Rule 1.02(w~~"KOLMAR") ~~of Regulation S-X under the Exchange Act) have been duly organized and are~~ is validly existing ~~as corporations~~ and in good standing under the laws of ~~their~~ its respective ~~jurisdictions~~ jurisdiction of incorporation and ~~are duly qualified~~ has all requisite corporate power and corporate authority to ~~transact business as foreign corporations~~ (a) enter into and ~~are in good standing~~ perform its obligations under the ~~laws of all other jurisdictions where such counsel has been advised that~~ Indenture, this Agreement and the ~~failure to be so qualified would amount to a material liability or disability to the Company~~ Registration Rights Agreement and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to~~ (b) own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the Final Memorandum. Each of the Company, Aerosol and Kolmar is duly qualified to do business as a foreign corporation in good standing in the jurisdictions listed on Schedule II hereto. (ii) The Company has all requisite corporate power and corporate authority to execute, deliver and perform each of its obligations under the Notes, the Exchange Notes and the ~~Company~~ Private Exchange Notes; each of Aerosol and Kolmar has all requisite corporate power and corporate authority to ~~enter into this Agreement~~execute, deliver and perform each of its obligations under its Guarantee, its Exchange Notes Guarantee and its Private Exchange Notes Guarantee; the ~~Registration Rights Agreement and~~ Inden- ture meets the requirements for qualification under the TIA as in effect on the date of such opinion; the Indenture ~~and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out~~ has been duly authorized by ~~it; all of the issued and outstanding shares of capital stock of~~ each of the Company~~’s significant subsidiaries~~, ~~except as otherwise set forth in the Final Memorandum~~Aerosol and Kolmar and, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been when duly executed and delivered by each Issuer (assuming the ~~Company; (v) the~~ due authorization, execution and delivery thereof by the Trustee), will constitute the valid and legally binding agreement of each Issuer, enforceable against each Issuer in accordance with its terms, except (i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (ii) that such firm need express no opinion as to the enforceability or effect of Section 4.09 of the ~~Indenture~~ Indenture. (iii) The Notes have each been duly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery ~~thereof~~ of the Indenture by the ~~Trustee), the Indenture will be a legal, valid~~ Trustee and ~~binding agreement~~ due authentication and delivery of the ~~Company, enforceable against~~ Notes by the ~~Company~~ Trustee in accordance with ~~its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect~~the Indenture). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be ~~the legal,~~ valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the ~~Indenture;~~ Indenture and enforceable against the Company in accordance with their terms, except (i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (ii) that such firm need express no ~~holder~~ opinion as to the enforceability or effect of ~~securities~~ Section 4.09 of the ~~Company has any right which has not~~ Indenture. (iv) The Guarantees by each of Aerosol and Kolmar have been ~~fully exercised or waived to require~~ duly authorized by Aerosol and Kolmar, respectively, and, when duly executed and delivered by Aerosol and Kolmar, respectively, in accordance with the ~~Company to register~~ terms of this Agreement (assuming the ~~offer or sale of any securities owned by such holder under the Act in the offering~~ due authorization, execution and delivery of the ~~Notes contemplated~~ Indenture by ~~this Agreement~~ the Trustee and the Indenture and the Guarantee by Piedmont), will be valid and binding obligations of the Guarantors enforceable against each of the Guarantor in accordance with their terms, ex- (i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and (ii) that such firm need express no opinion as to the ~~Exchange Offer contemplated by~~ enforceability or effect of Section 4.09 of the ~~Registration Rights Agreement;~~Indenture. (~~vii~~v) ~~the~~ The Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and ~~when~~ if the Exchange Notes and the Private Exchange Notes ~~are~~ were duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture on the date of such opinion (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), ~~will~~ they would be ~~the legal,~~ valid and binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms~~ terms, except (~~subject~~i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, as insolvency, (including, without limitation, all laws relating to ~~enforcement of remedies, to applicable bankruptcy~~fraudulent transfers), reorganization, ~~insolvency,~~ moratorium and other similar laws now or ~~other laws~~ hereafter in effect relating to or affecting creditors’ ' rights generally ~~from time~~ and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (ii) that such firm need express no opinion as to ~~time in effect)~~the enforceability or effect of Section 4.09 of the Indenture. (~~viii~~vi) The Exchange Notes Guarantees and the ~~Company has all requisite corporate power~~ Private Exchange Notes Guarantees of Aerosol and ~~authority to execute~~Kolmar have been duly authorized by Aerosol and Kolmar, ~~deliver~~ respectively, and, if the Exchange Notes Guarantees and ~~perform its obligations under~~ the Private Exchange Notes Guarantees were duly executed and delivered by Aerosol and Kolmar, respectively, in accordance with the terms of the Registration Rights ~~Agreement;~~ Agreement and the Indenture on the date of such opinion (assuming due authorization, execution and delivery of the Indenture by the Trustee and the Indenture, the Exchange Note Guarantee and the Piedmont Exchange Note Guarantee by Piedmont), they would be valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, except (i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and (ii) that such firm need express no opinion as to the enforceability or effect of Section 4.09 of the Indenture. (vii) The Registration Rights Agreement has been duly authorized by each of the ~~Company~~ Company, Aerosol and Kolmar and, when duly executed and delivered by each of the ~~Company~~ Company, Aerosol and Kolmar (assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers~~Purchaser and Piedmont), will be a ~~legal,~~ valid and binding agreement of each of the ~~Company~~Issuers, enforceable against each of the ~~Company~~ Issuers in accordance with its ~~terms~~ terms, except (~~subject~~i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, as insolvency (including, without limitation, all laws relating to ~~enforcement of remedies, to applicable bankruptcy~~fraudulent transfers), reorganization, ~~insolvency,~~ moratorium and other similar laws now or ~~other laws~~ hereafter in effect relating to or affecting creditors’ ' rights generally ~~from time to time~~ and (B) general principles of equity (regardless of whether enforcement is sought in ~~effect~~ a proceeding at law or in equity) and ~~except~~ (ii) that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (viii) This Agreement and the consummation by each of the Company, Aerosol and Kolmar of the transactions contemplated hereby have been duly authorized by each of the Company, Aerosol and Kolmar. This Agreement has been duly executed and delivered by each of the Company, Kolmar and Aerosol. (ix) The Indenture, the Notes, the Guarantees and the Registration Rights Agreement, conform in all material respects to the descriptions thereof contained in the Final Memorandum. (x) The statements set forth under the headings "Risk Factors -- Subordination of the Notes and the Guarantees," "Description of Certain Terms of the Preferred Stock and the Warrant Agreement," "Exchange Offer; Registration Rights" and "Description of Notes" in the Final Memorandum, insofar as such statements constitute a summary of legal matters, documents or proceedings referred to therein, fairly present such legal matters, documents and proceedings in all material respects. (xi) The execution and delivery by the ~~Company of~~Company, Kolmar and ~~the performance by the Company~~ Aerosol of ~~its obligations under,~~ this Agreement, the Registration Rights ~~Agreement~~Agreement and the Indenture, the ~~Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering~~ issuance and sale of the ~~Notes~~ Securities to the Initial ~~Purchasers by~~ Purchaser and the ~~Company~~ performance of the Company's, Kolmar's and Aerosol's respective obligations pursuant to this Agreement, the ~~compliance by the Company with the other provisions of this~~ Registration Rights Agreement and the ~~consummation of the other transactions herein contemplated do~~ Indenture (i) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms ~~and~~ or provisions of, or constitute a default under the Articles of Incorporation or similar organizational document or bylaws of any of the Company, Kolmar or Aerosol, (ii) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default (with the passage of time or otherwise) under, or result in the imposition or creation of (or the obligation to create or impose) any ~~indenture~~security interest, mortgage, ~~deed~~ pledge, claim, lien, encumbrance or adverse interest of ~~trust~~any nature (each, ~~lease~~ a "Lien") on any properties of the Company, Kolmar or ~~other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries~~ Aerosol or any of their respective ~~properties are bound~~subsidiaries or an acceleration of indebtedness pursuant to any of the agreements listed on Schedule III hereto, where, in any such instance, such breach, default, Lien, acceleration of indebtedness or conflict could reasonably be expected to have, individually or in the ~~charter documents~~ aggregate, a material adverse effect on the general affairs, management, business condition (financial or ~~by-laws~~ otherwise), prospects or results of operations of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the ~~application of the proceeds therefrom~~Subsidiaries, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification taken as a ~~real estate investment trust (“REIT”) under the Code~~whole, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) ~~the due performance by~~ will not conflict with or violate any Applicable Law (as hereinafter defined) or Applicable Order (as hereinafter defined), it being understood that we express no opinion as to any violation of any Applicable Law or Applicable Order as a result of the Initial ~~Purchasers~~ Purchaser's involvement, the involvement of any of the ~~agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters~~ Initial Purchaser's affiliates or the involvement of ~~fact,~~ subsequent purchasers of the Securities from the Initial Purchaser because of the Initial Purchaser's legal or regulatory status or because of other facts specifically pertaining to the ~~extent~~ Initial Purchaser, the Initial Purchaser's affiliates or such ~~counsel deems proper~~other purchasers. The term "Applicable Law" means any law, ~~on certificates of responsible officers~~ rule and regulation of the ~~Company and public officials and~~United States of America, ~~as to matters involving~~ the ~~application~~ State of ~~laws of any jurisdiction other than~~ California, the State of New York ~~or the United States or the~~ and any General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing DateDelaware that, in ~~form and substance satisfactory~~ our experience, is normally applicable to ~~counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman~~ transactions of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or type contemplated by ~~the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of~~ this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement ~~executed by~~ and the ~~Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date~~Indenture, ~~the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates~~provided, ~~documents or other information~~ that we express no opinion as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request."blue sky" or state

Appears in 1 contract

Sources: Purchase Agreement (Aerosol Services Co Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from ▇▇~~the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Winston & ▇▇▇▇▇▇ ~~Chance US~~ LLP, counsel for the Company, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchasers, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have been~~ Subsidiaries is duly ~~organized and are~~ incorporated or otherwise organized, validly existing ~~as corporations~~ and in good standing under the laws of ~~their~~ its respective ~~jurisdictions~~ jurisdiction of incorporation and ~~are~~ has all requisite corporate or other organizational power and authority to own or lease its properties and to conduct its business as described in the Final Memorandum. Each of the Company and the Subsidiaries is duly qualified to ~~transact~~ do business as a foreign ~~corporations and are~~ corporation or entity in good standing ~~under the laws of~~ in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such ~~counsel has been advised that~~ qualification, except where the failure to be so qualified would ~~amount to a material liability~~ not, individually or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the ~~Final Memorandum~~aggregate, ~~and the~~ reasonably be expected to have a Material Adverse Effect. (ii) The Company has ~~corporate power to enter into this Agreement~~the authorized, ~~the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the~~ issued and outstanding ~~shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise~~ capitalization set forth in the Final Memorandum; all of the outstanding shares of capital stock or membership interests, as applicable, of the Company and the Subsidiaries have been duly authorized and validly issued, are ~~owned beneficially~~ fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; all of the outstanding shares of capital stock, or membership interests, as applicable, of the Subsidiaries are owned, directly or indirectly, by the ~~Company~~ Company, free and ~~clear~~ clear, and as of ~~any~~ the Closing will be free of all perfected security interests orand, to the ~~best~~ knowledge of such counsel, ~~any~~ free and clear of all other ~~security interests,~~ liens, encumbrances, equities and claims or ~~claims, except for pledges~~ restrictions on transferability (other than those imposed by the Act and the securities or “Blue Sky” laws of ~~subsidiary stock under debt instruments;~~certain jurisdictions) or voting. (iii) ~~the statements~~ Except as set forth ~~under the heading “Description of Notes”~~ in the Final ~~Memorandum~~Memorandum (A) no options, ~~insofar as such statements purport~~ warrants or other rights to ~~summarize certain provisions~~ purchase from the Company or any Subsidiary shares of capital stock or ownership interests in the Company or any Subsidiary are outstanding, (B) no agreements or other obligations to issue, or other rights to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company or any Subsidiary are outstanding and (C) no holder of securities of the ~~Notes and~~ Company or any Subsidiary is entitled to have such securities registered under a registration statement filed by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus Company pursuant to the ~~Act and~~ Registration Rights Agreement. The sole member of Wise Alloys is the ~~Exchange Act and the respective rules and regulations thereunder;~~Company. (iv) ~~the execution and delivery of this Agreement have been duly authorized by all necessary corporate action~~ Each of the ~~Company~~ Issuers has all requisite corporate or limited liability company power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the ~~Agreement~~ Private Exchange Notes; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly ~~executed~~ and ~~delivered~~ validly authorized by ~~the Company; (v) the execution and delivery~~ each of the ~~Indenture have been duly authorized by the Company~~ Issuers and, when duly executed and delivered by each of the ~~Company~~ Issuers (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the ~~Indenture will be a legal,~~ valid and legally binding agreement of each of the ~~Company~~Issuers, enforceable against each of the ~~Company~~ Issuers in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ rights generally ~~from time to time in effect). The Indenture meets~~ and (ii) general principles of equity and the ~~requirements for qualification under~~ discretion of the ~~TIA~~court before which any proceeding therefor may be brought. (viv) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized by ~~all necessary corporate action~~ each of the ~~Company~~ Issuers and, ~~on and as of the Closing Date, the Notes will have been~~ when duly executed and delivered by each of the ~~Company and~~Issuers and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, ~~assuming~~ execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of each of the ~~Company~~Issuers, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder of securities~~ , and enforceable against each of the ~~Company has any right which has not been fully exercised~~ Issuers in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or ~~waived~~ other similar laws now or hereafter in effect relating to ~~require~~ creditors’ rights generally and (ii) general principles of equity and the ~~Company to register the offer or sale of any securities owned by such holder under the Act in the offering~~ discretion of the ~~Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;~~court before which any proceeding therefor may be brought. (~~vii~~vi) ~~the~~ The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by each of the ~~Company~~Issuers, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by each of the ~~Company~~ Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of each of the ~~Company~~Issuers, entitled to the benefits of the Indenture, and enforceable against each of the Issuers in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ rights generally ~~from time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (vii) The Guarantees are in the form contemplated by the Indenture. Each of the Guarantors has all requisite corporate or limited liability company power and authority to ~~time~~ execute, deliver and perform each of its obligations under the Guarantees. The Guarantees and the guarantees of the Exchange Notes and the Private Exchange Notes have each been duly and validly authorized by each of the Guarantors and, when executed by each of the Guarantors and upon authentication of the Notes, the Exchange Notes or the Private Exchange Notes, as the case may be, by the Trustee in ~~effect)~~accordance with the provisions of the Indenture and, in the case of the Guarantees, when delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of each of the Guarantors, entitled to the benefits of the Indenture, and enforceable against each of the Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (viii) Each of the ~~Company~~ Issuers and each of the Guarantors has all requisite corporate or limited liability company power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by each of the ~~Company~~ Issuers and each of the Guarantors and, when duly executed and delivered by each of the ~~Company~~ Issuers and each of the Guarantors (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will ~~be a legal,~~ constitute the valid and legally binding agreement of each of the ~~Company~~Issuers and each of the Guarantors, enforceable against each of the ~~Company~~ Issuers and each of the Guarantors in accordance with its ~~terms~~ terms, except that (~~subject, as~~ A) the enforcement thereof may be subject to ~~enforcement of remedies, to applicable~~ (i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ rights generally ~~from time to time in effect~~ and ~~except that~~ (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) Each of the ~~execution~~ Issuers and ~~delivery~~ each of the Guarantors has all requisite corporate or limited liability company power and authority to execute, deliver and perform its obligations under the Collateral Documents. Each Collateral Document and the Intercreditor Agreement has been duly and validly authorized, executed and delivered by each of the ~~Company of~~Issuers and each of the Guarantors, and, except for any Mortgage (as to which such counsel expresses no opinion), constitutes the valid and legally binding agreement of each of the Issuers and each of the Guarantors, enforceable against each of the Issuers in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally, and (ii) general principles of equity and the ~~performance by~~ discretion of the ~~Company~~ court before which any proceeding therefor may be brought. (x) Each of the Issuers and each of the Guarantors has all requisite corporate or limited liability company power and authority to execute, deliver and perform its obligations ~~under~~under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by each of the Issuers and each of the Guarantors of the transactions contemplated hereby have been duly and validly authorized by each of the Issuers and each of the Guarantors. This Agreement has been duly executed and delivered by each of the Issuers and each of the Guarantors. (xi) The Indenture, ~~this Agreement~~the Notes, the Guarantees, the Registration Rights Agreement, ~~the Indenture~~ each Collateral Document and the Intercreditor Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum. The statements in the Final Memorandum under the headings “Capitalization”, “Description of Other Indebtedness”, “Description of Notes” and “Exchange Offer; Registration Rights” are true and correct in all material respects and, to the ~~Exchange Notes~~ extent such statements describe law, statutes, legal proceedings or provisions of agreements, such statements accurately describe such law, statutes, legal proceedings and the ~~Private Exchange Notes~~provisions of such agreements in each case in all material respects. (xii) No legal or governmental proceedings are pending or, to the ~~issuance~~knowledge of such counsel, ~~offering and~~ threatened to which any of the Company or the Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary is subject that, if determined adversely to the Company or the Subsidiaries, would reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, or that seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the ~~Notes~~ Securities to ~~the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and~~ be sold hereunder or the consummation of the other transactions ~~herein contemplated do not~~ described in the Final Memorandum under the caption “Use of Proceeds.” (xxiii) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws None of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act Company or the ~~TIA~~ Subsidiaries is to the knowledge of such counsel, (i) in ~~connection with the exchange offer contemplated by the Registration Rights Agreement~~violation of its certificate of incorporation, bylaws or limited liability company agreement (yor similar organizational document), (ii) ~~conflict with or result~~ in a breach or violation of any ~~of the terms and provisions of~~statute, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, except for any such breach or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or (iii) in breach or default under (nor has any event occurred that, with notice or passage of time or both, would constitute a default under) or in violation of any ~~court~~ of the terms or ~~other governmental authority or~~ provisions of any ~~arbitrator~~ Contract known to such counsel (including in any event any of the foregoing that have been filed by the Company with the Commission), except for any such breach, default, violation or event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (xiv) The execution, delivery and ~~applicable~~ performance of this Agreement, the Guarantees, the Indenture, the Registration Rights Agreement and the Collateral Documents and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the ~~Company or its significant subsidiaries; (x~~Initial Purchasers) ~~the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom,~~ will not ~~be an “investment company”~~conflict with or constitute or result in a breach or a default, ~~as such term is defined~~ or result in the ~~1940 Act; and (xi) such counsel does not know~~ creation or imposition of any ~~legal~~ lien, charge or ~~governmental proceedings pending~~ encumbrance upon any property or ~~threatened to which~~ asset of the Company or any Subsidiary (other than pursuant to the Collateral Documents), under (or an event that with notice or passage of ~~its subsidiaries is~~ time or both would constitute a ~~party~~ default under) or violation of or pursuant to, any of (i) the terms or provisions of any Contract known to ~~which~~ such counsel (including in any event any of the ~~property~~ foregoing that have been filed by either of the Issuers with the Commission), except for any such conflict, breach, violation, imposition, default or event that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) the certificate of incorporation, bylaws or limited liability company agreement (or similar organizational document) of the Company or any of ~~its subsidiaries is subject that would be required to be described in a prospectus pursuant to~~ the ~~Act that are not described in the Final Memorandum~~ Subsidiaries, or ~~any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.~~ (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (iiii) (~~A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (~~assuming compliance with all applicable state securities or “~~QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii)~~ Blue Sky” laws and assuming the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the ~~Company~~ Initial Purchasers in ~~this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part~~ Section 8 hereof) any statute, judgment, decree, order, rule or regulation known to such counsel to be ~~performed or satisfied at or prior~~ applicable to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of ~~its subsidiaries, taken as a whole~~the Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation that would not, individually or in ~~each case as described in or contemplated by~~ the ~~Final Memorandum (exclusive of any amendment or supplement thereto)~~aggregate, reasonably be expected to have a Material Adverse Effect. (exv) ~~Subsequent to the execution and delivery of this Agreement and prior to the Closing Date~~No consent, ~~there shall not have occurred any downgrading~~approval, ~~nor shall any notice have been given~~ authorization or order of any ~~intended or potential downgrading or of any review~~ governmental authority is required for ~~a possible change that does not indicate~~ the ~~direction of the possible change, in the rating accorded~~ issuance and sale by any of the ~~Company’s securities by~~ Issuers or any ~~“nationally recognized statistical rating organization”, as such term is defined for purposes~~ of ~~Rule 436(g)(2) under~~ the ~~Act. (f) The Indenture shall have been executed and delivered by all~~ Guarantors of the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects Securities to the Initial Purchasers or the consummation by each of the Issuers and each of the Guarantors of the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained. (xvi) The Company and the Subsidiaries have obtained all Permits necessary to conduct the businesses now or proposed to be conducted by them as described in the Final Memorandum, the lack of which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; each of the Company and the Subsidiaries has performed all of its obligations with respect to such Permits and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Permit, except with respect to where such non-performance, revocation, termination, or other impairment, would not reasonably be expected to have a material adverse effect. (xvii) No consent, approval, authorization or order of any United States federal, New York or Delaware governmental agency, pursuant to any presently existing law or regulation of the United States of America or the State of New York, the Delaware General Corporation Law, the Delaware Limited Liability Company Act, and the Maryland Limited Liability Company Act is required to be obtained or made by either of the Issuers for the ~~Initial Purchasers. The Company shall furnish~~ execution, delivery and performance by the Issuers and the Guarantors of the Security Agreement, except for the filing of the UCC financing statement or any other filing naming the Issuers and the Guarantors as debtors and the Collateral Agent (as defined in the Security Agreement) as secured party, in a form attached to such opinion (the ~~Initial Purchasers such conformed copies of such opinions, certificates, letters,~~ “Financing Statement”) and ~~documents in such quantities as~~ routine filings required to be made by the ~~Initial Purchasers shall reasonably request~~Issuers and the Guarantors after the date hereof to comply with their covenants under the Security Agreement. (xviii) To the knowle

Appears in 1 contract

Sources: Purchase Agreement (Listerhill Total Maintenance Center LLC)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ Offered Notes on the ~~Notes shall,~~ Closing Date will be ~~subject~~subject to the accuracy, in ~~the Initial Purchasers’ sole discretion~~all material respects, ~~to the accuracy~~ of the representations and warranties of the ~~Company contained~~ applicable Issuer herein as and of ~~the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~OfficeMax herein, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~performance, ~~to the performance~~ in all material respects, by ~~the Company~~ such Issuer of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~Such Issuer’s Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Indenture Collateral of such Issuer shall have been pledged to the Indenture Trustee pursuant to the terms of the applicable Indenture. (b) The Initial Purchasers shall have received a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company~~certificate, dated as of the Closing Date, of a Regular Manager of each Issuer to the effect that such Regular Manager has carefully examined this Agreement, each Memorandum and the Transaction Documents to which such Issuer is a party and that: , to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of such ~~counsel~~ Issuer, whether or not arising in the ordinary course of business, or the ability of such Issuer to perform its obligations hereunder or under the Transaction Documents except as contemplated by each Memorandum, (ii) the representations and warranties of such Issuer set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) such Issuer has ~~no reason~~ complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents to which it is a party, at or prior to the Closing Date, (iv) the representations and warranties of such Issuer in the Transaction Documents to which it is a party are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion)~~ the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or ~~the date of such opinion, included or includes~~ any Additional Offering Document contains an untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) ~~the Company and~~ The Class A-1 Notes shall each ~~of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ have been ~~duly organized~~ rated no less than “Aa3” by ▇▇▇▇▇’▇ and ~~are validly existing as corporations in good standing under~~ “A” by S&P, the ~~laws of their respective jurisdictions of incorporation~~ Class A-2 Notes shall each have been rated no less than “A1” by ▇▇▇▇▇’▇ and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where~~ “A” by S&P, such ~~counsel has~~ ratings shall not have been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandumrescinded, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out no public announcement shall have been made by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any ~~perfected security interests or, to the best knowledge~~ rating agency that its rating of such ~~counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges~~ Class of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Offered Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification placed under ~~the TIA~~review. (vid) ~~the Notes~~ The Initial Purchasers shall have ~~been duly authorized by all necessary corporate action of the Company and~~received an opinion, ~~on and as of~~ dated the Closing Date, of in-house counsel to the ~~Notes will have been duly executed and delivered by the Company and, assuming due authentication by the~~ Indenture Trustee, ~~will be the legal, valid~~ in form and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled substance satisfactory to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)Initial Purchasers. (~~viii~~e) ~~the Company has all requisite corporate power~~ The Initial Purchasers shall have received legal opinions, in form and ~~authority~~ substance satisfactory to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), ~~will be a legal~~(i) of King & Spalding LLP, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes counsel to the ~~Initial Purchasers by the Company pursuant to this Agreement~~Issuers and OfficeMax, ~~the compliance by the Company~~ with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable respect to the ~~Company or its significant subsidiaries; (x) the Company is not an “investment company” and~~certain federal tax, ~~after giving effect~~ ERISA, securities law matters and with respect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum ~~or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to~~ (excluding the ~~Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized~~ sections entitled “Available Information About Wachovia” and ~~has operated in conformity with the requirements for qualification as a real estate investment trust (~~“~~REIT~~Available Information About ▇▇▇▇▇▇ Brothers”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes from Dechert LLP, counsel to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, ~~upon~~ with respect to corporate, securities law, investment company matters and with respect to the ~~opinion~~ Final Memorandum (excluding the sections entitled “Available Information About Wachovia” and “Available Information About ▇▇▇▇▇▇ Brothers”), (iii) of Dechert LLP with respect to certain “true contribution” and “non–consolidation” issues in form and substance satisfactory to the Initial Purchasers; and (iv) of ▇▇▇▇▇▇~~▇ LLP. An opinion of ▇▇▇▇▇~~▇▇ Leyton & Finger LLP ~~shall be delivered~~ with respect to ~~the Initial Purchasers and counsel for the Initial Purchasers covering~~ certain matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Dateunder Delaware law. (bf) The Initial Purchasers shall have received ~~a legal~~ an opinion ~~from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date,~~ of Dechert LLP with respect to certain ~~legal matters relating~~ “perfection issues” in form and substance satisfactory to ~~this Agreement and such other related matters as~~ the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersPurchasers. (cg) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Indenture Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Indenture Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dh) ~~The Company~~ Each Issuer and OfficeMax shall have ~~furnished or caused to be~~ furnished to the Initial Purchasers ~~at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ and its ~~Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations~~ counsel such further information, certificates and ~~warranties of the Company in this Agreement are true and correct~~ documents as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and its counsel ~~for~~ may reasonably have requested, and all proceedings in connection with the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to transactions contemplated by this Agreement ~~will comply with the provisions hereof only if they are satisfactory~~ and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers and ~~counsel for the Initial Purchasers. The Company~~ its counsel. (i) Each Issuer and OfficeMax shall ~~furnish~~ have furnished to the Initial Purchasers such ~~conformed copies of such opinions~~further information, certificates, ~~letters~~opinions or documents reasonably requested by the Initial Purchasers, including any material delivered to the Rating Agencies. (j) All documents incident hereto and ~~documents~~ to the Transaction Documents shall be reasonably satisfactory in ~~such quantities as~~ form and substance to the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects or waived by the Initial Purchasers when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Issuers in writing, or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Sources: Purchase Agreement (Officemax Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation of the~~ Initial ~~Purchasers~~ Purchasers' obligations to purchase and pay for the ~~Notes shall,~~ Units shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to (i) the accuracy of the representations and warranties of the Company and the Guarantors herein contained ~~herein~~ as of the date hereof and as of ~~each~~ the Closing Date, ~~as if made on and as of each Closing Date~~(ii) the absence in any certificates, opinions, written statements or letters furnished pursuant to this Section 6 to the ~~accuracy~~ Initial Purchasers or to their counsel, of any qualification or limitation not previously approved by the ~~statements of the Company’s officers made pursuant to the provisions hereof~~Initial Purchasers, to (iii) the performance by the Company and the Guarantors of ~~its covenants~~ their obligations hereunder required to be performed on or prior to the Closing Date, and ~~agreements hereunder and to~~ (iv) the following additional conditions: (a) Since the date of the latest balance sheet included in the Definitive Memorandum: (i) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company or the Guarantors from that set forth in or contemplated by the Definitive Memorandum, (ii) the Company shall have no liability or obligation, direct or contingent, that is material to the Company and the Guarantors, taken as a whole, other than those reflected in the Definitive Memorandum; and (iii) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the financial condition, business, properties, prospects, oil and gas reserves, net worth or results of operations of the Company and the Guarantors taken as a whole, except, in each case, as expressly described in the Definitive Memorandum. (b) The representations and warranties made by the Company and the Guarantors herein shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; and the Company and the Guarantors shall have complied in all material respects with all agreements hereunder required to be performed by the Company and the Guarantors. (c) As to each Initial Purchaser, the purchase of and payment for the Units to be purchased by such Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation, order or other restriction. (d) The Definitive Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York time, on the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may agree, and no stop order suspending the qualification or exemption from qualification of the Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (e) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Notes; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company and the Guarantors, threatened against, the Company, the Guarantors or any of their respective subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably by expected to have a Material Adverse Effect, on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries taken as a whole. (f) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for~~ the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock opinions of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ ~~LLP~~▇. ~~An opinion of~~ ▇▇▇▇▇▇~~▇ LLP shall be delivered to the Initial Purchasers~~ , P.A. and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~, counsel ~~for~~ to the ~~Initial Purchasers~~Company, dated the Closing Date, ~~with respect~~ addressed to ~~certain legal matters relating to this Agreement and such other related matters as~~ the Initial ~~Purchasers may reasonably require. In rendering such opinion~~Purchasers, ~~▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received~~ and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in each in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer scope reasonably satisfactory to the Initial ~~Purchasers to the effect that: (i) the representations~~ Purchasers' counsel, substantially as set forth in Exhibits C-1 and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)C-2 hereto, neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties theretorespectively. (g) On the Closing Date, the Initial Purchasers shall have received a certificate, dated the ~~Registration Rights Agreement executed~~ Closing Date, signed by each of the Chairman of the Board and Chief Financial Officer or the President and the Chief Financial Officer of the Company and the Guarantors, and such ~~agreement shall be~~ other certificates of executive officers as the Initial Purchasers may specify confirming the matters set forth in ~~full force~~ paragraphs (a) and ~~effect at all times from and after the Closing Date~~(b) of this Section 6. (h) On ~~or before~~ the Closing Date, the Initial Purchasers shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇ l.l.p., an opinion, dated the Closing Date, addressed to the Initial Purchasers, with respect to the Company, the Guarantors, the Offering Memorandum, the offer, sale and ~~counsel~~ resale of the Units and other related matters as the Initial Purchasers reasonably may require, and the Company shall have furnished to such firm such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (i) Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from Coopers & ▇▇▇▇▇▇▇ L.L.P., and on the Closing Date, the Initial Purchasers shall have received from Coopers & ▇▇▇▇▇▇▇ L.L.P., a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. (j) Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from LKA, and on the Closing Date, the Initial Purchasers shall have received from LKA, a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. (k) On the Closing Date, the Company and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenture; and the Company shall have executed the Warrant Agreement. (l) On or prior to the Closing Date, the Amended Credit Facility shall have been executed and delivered by the Company and the banks executing same, and providing for an available borrowings in an amount of at least $30 million after the Closing. (m) Simultaneously with the Closing, the HS Acquisition shall have been consummated as described in the Offering Memorandum. (n) On the Closing Date, the Notes shall be rated at least B3 by ▇▇▇▇▇'▇ and B by S&P, and the Company shall have delivered to the Initial Purchasers a letter dated the Closing Date, from each such rating agency, or other evidence satisfactory to the Initial Purchasers, confirming that the Notes have such ratings; and since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Notes or any of the Company's other securities by any nationally recognized securities rating agency, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes or any of the Company's other securities. (o) Prior to the Closing Date, the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers reasonably may request in writing. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, ~~documents or other information as they may have reasonably requested from the Company. All~~ opinions, ~~certificates,~~ written statements or letters ~~and documents delivered~~ furnished to the Initial Purchasers or to their counsel pursuant to this ~~Agreement will comply with the provisions hereof only if they are~~ Section 6 shall not be reasonably satisfactory in form and scope in all material respects to the Initial Purchasers and ~~counsel for~~ to their counsel, all of the Initial Purchasers' obligations hereunder may be canceled by them at, or at any time prior to, the Closing Date. ~~The Company~~ Notice of such cancellation shall ~~furnish~~ be given to the ~~Initial Purchasers such conformed copies of such opinions~~Company and the Guarantors in writing or by telephone, ~~certificates~~telecopy, ~~letters~~telex or telegraph, ~~and documents~~ confirmed in ~~such quantities as the Initial Purchasers shall reasonably request~~writing.

Appears in 1 contract

Sources: Purchase Agreement (Gothic Gas Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Akin, Gump, Strauss, Haue▇ & ▇eld, ▇~~▇▇▇▇▇▇ Chance US LLP~~.L.P., counsel for the Company, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, to the effect that: (i) ~~such counsel has no reason to believe that (other than the financial statements and other financial information contained therein~~The Company is duly incorporated, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation and are duly~~ incorporation. The Company, based solely on good standing certificates, is qualified to ~~transact~~ do business as a foreign ~~corporations and are~~ corporation in ~~good standing under~~ the ~~laws of all other~~ jurisdictions ~~where~~ listed on a schedule to such ~~counsel~~ opinion. (ii) The Company has ~~been advised that~~ the ~~failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ corporate power and authority to ~~own~~execute, ~~lease~~ deliver and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of perform each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth its obligations under the ~~heading “Description of Notes” in the Final Memorandum~~Indenture, ~~insofar as such statements purport to summarize certain provisions of~~ the Notes and the ~~Indenture, provide a fair summary of such provisions~~Exchange Notes; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture ~~have~~ has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the ~~Indenture will be a legal,~~ valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights and remedies generally ~~from time to time~~ and (ii) general principles of equity (regardless of whether such enforcement may be sought in ~~effect). The Indenture meets~~ a proceeding in equity or law) and the ~~requirements for qualification under~~ discretion of the ~~TIA~~court before which any proceeding therefor may be brought. (viiii) ~~the~~ The Notes have each been duly ~~authorized by all necessary corporate action of the Company and~~authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company ~~and, assuming due authentication~~ and when paid for by the ~~Trustee,~~ Initial Purchaser in accordance with the terms of this Agreement will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company,~~ Company and enforceable against the Company in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights and remedies generally ~~from time to time~~ and (ii) general principles of equity (regardless of whether such enforcement may be sought in ~~effect~~a proceeding in equity or law) and ~~entitled to~~ the ~~benefits~~ discretion of the ~~Indenture; no holder of securities of the Company has~~ court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;proceeding therefor may be brought. (~~vii~~iv) ~~the Exchange Notes and the Private~~ The Exchange Notes have been duly authorized by the Company, and when ~~the Exchange Notes and the Private Exchange Notes~~ they are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes ~~and the Private Exchange Notes~~ by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights and remedies generally ~~from time to time~~ and (ii) general principles of equity (regardless of whether such enforcement may be sought in ~~effect)~~a proceeding in equity or law) and the discretion of the court before which any proceeding therefor may be brought. (~~viii~~v) ~~the~~ The Company has ~~all requisite~~ the corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly ~~authorized by the Company and~~authorized, ~~when duly~~ executed and delivered by the Company and (assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers), will be a legal,~~ Purchaser) constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that (~~subject, as~~ A) the enforcement thereof may be subject to ~~enforcement of remedies, to applicable~~ (i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting creditors’ rights generally from time to time~~ now or hereafter in effect relating to creditors' rights and ~~except that~~ remedies generally and (ii) general principles of equity (regardless of whether such enforcement may be sought in a proceeding in equity or law) and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to ~~indemnity~~ indemnification or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ixvi) The Company has the ~~execution~~ corporate power and ~~delivery by~~ authority to execute, deliver and perform its obligations under this Agreement and to consummate the ~~Company of,~~ transactions contemplated hereby; this Agreement and the ~~performance~~ consummation by the Company of ~~its obligations under~~the transactions contemplated hereby have been duly and validly authorized, executed and delivered by the Company. (vii) The execution, delivery and performance of this Agreement, the ~~Registration Rights Agreement, the Indenture and the~~ Notes, the ~~Exchange Notes and the Private Exchange Notes~~Indenture, the ~~issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this~~ Registration Rights Agreement and the consummation of the ~~other~~ transactions ~~herein~~ contemplated ~~do not~~ hereby and thereby (~~x) require~~ including the ~~consent, approval, authorization, registration or qualification~~ transfer of ~~or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by~~ ownership to the ~~securities or Blue Sky laws~~ Initial Purchaser of the ~~various states~~ Wilrig Notes, the Warrants and the Tath▇▇ Notes and the redemption of the ~~United States of America~~ Wilrig Notes and ~~other U.S. jurisdictions in connection with~~ the ~~offer and sale of~~ Tath▇▇ ▇▇▇es on the ~~Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y~~Closing Date) will not conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms ~~and~~ or provisions ~~of, or constitute a default under,~~ of any ~~indenture, mortgage, deed of trust, lease or other material agreement or instrument,~~ Contract known to such counsel, except for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, reasonably be expected to ~~which~~ have a Material Adverse Effect, (ii) the ~~Company~~ certificate of incorporation or ~~any of its significant subsidiaries is a party~~ bylaws (or ~~by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws~~ similar organizational document) of the Company or any of ~~its significant subsidiaries~~the Subsidiaries, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 7 hereof) any ~~statute or any~~ statute, judgment, decree, order, rule or regulation ~~of any court or other governmental authority or any arbitrator~~ known to such counsel ~~and~~ to be applicable to the Company or ~~its significant subsidiaries;~~any of the Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (xviii) No consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company ~~is not an “investment company” and, after giving effect to the Offering~~ of the Notes ~~and~~ to the ~~application~~ Initial Purchaser or the consummation by the Company of the ~~proceeds therefrom~~other transactions contemplated hereby, ~~will not~~ except such as may be ~~an “investment company”~~required under Blue Sky laws, as to which such ~~term is defined~~ counsel need express no opinion, and those which have previously been obtained and except for the filing of a registration statement under the Act and qualification of the Indenture under the TIA in connection with the ~~1940 Act; and~~Registration Rights Agreement. (xiix) ~~such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property~~ None of the Company or ~~any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to~~ the ~~Act that are not described in the Final Memorandum~~ Subsidiaries is, or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with immediately after the sale of the Notes to be sold hereunder will be subject to registration as an "investment company" under the ~~Initial Purchasers~~ Investment Company Act of 1940, as ~~contemplated by this Agreement~~ amended. (x) Prior to the issuance of the Exchange Notes, the offer, issuance, sale and ~~the Final Memorandum or in connection with the initial resale~~ delivery of the Notes by in the ~~Initial Purchasers in accordance with Section 8 of this Agreement, and prior to~~ manner contemplated herein do not require registration under the ~~commencement~~ Act or qualification of the ~~Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the~~ Indenture ~~is not required to be qualified~~ under the TIA~~, in each case assuming~~ . (ib) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ The representations ~~in Section 8~~ and ~~those~~ warranties of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be ~~delivered to the Initial Purchasers~~ true and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions correct on and as of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and on and as of the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct Date as if made on and as of the Closing Date; the 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, subsequent to the date of the most recent financial statements in the Disclosure Documents, 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. (c) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date. (d) The Initial Purchaser shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chairman of the Board, President or any Senior Vice President and the Chief Financial Officer, to the effect that: (i) The representations and warranties of the Company contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions on its 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 Disclosure Documents, 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 (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) ~~Subsequent to the execution and delivery of this Agreement and~~ On or prior to the Closing Date, ~~there~~ the Initial Purchaser shall ~~not~~ have ~~occurred any downgrading~~purchased the Wilrig Notes, ~~nor~~ the Warrants and the Tath▇▇ ▇▇▇es, and received physical delivery thereof; provided, that this condition 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,~~ be deemed waived in the ~~rating accorded any~~ event that such transactions are not consummated solely by reason of ~~the Company’s securities~~ a default by ~~any “nationally recognized statistical rating organization”, as such term is defined for purposes~~ BTSC of ~~Rule 436(g)(2)~~ its obligations under ~~the Act~~its agreements with Transocean AS and Mr. ▇▇▇▇▇▇ ▇▇▇ating thereto. (f~~) The Indenture shall have been executed and delivered by all the parties thereto. (g~~) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received the Registration Rights Agreement (together with the form of Indenture and Exchange Note attached thereto as an Exhibit) executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (hg) On ~~or before~~ the Closing ~~Date~~Date and concurrently with the issuance of the Notes, the ~~Initial Purchasers and counsel for the Initial Purchasers~~ Company shall have ~~received such further certificates~~purchased the Wilrig Notes, ~~documents or other information as they may have reasonably requested from~~ the ~~Company~~Warrants and the Tath▇▇ ▇▇▇es in accordance with Section 2 hereof. All such documents, opinions, certificates, ~~letters and documents~~ letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial ~~Purchasers~~ Purchaser and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably requestPurchaser.

Appears in 1 contract

Sources: Note Purchase and Exchange Agreement (Deeptech International Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers to purchase ~~and pay for~~ the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder ~~and~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Notes in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated. (b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Notes. (c) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from~~ of Fulbright & ▇▇▇▇▇▇▇▇ ~~Chance US LLP~~L.L.P., counsel for the Company, dated the Closing ~~Date~~Date and addressed to the Initial Purchasers, to the effect that: (i) ~~such counsel has no reason to believe that (other than the financial statements~~ The Company is a corporation duly incorporated and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing ~~as corporations~~ in good standing under the laws of ~~their respective jurisdictions~~ the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have Delaware with full corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the ~~Final Memorandum~~Offering Memorandum (and any amendment or supplement thereto); (ii) Each Significant Subsidiary (as defined in Section 1.02(w) of Regulation S-X promulgated under the Act) is a corporation validly existing and in good standing under the laws of the jurisdiction of its organization, with full corporate power and authority to own, lease, and ~~the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture~~ operate its properties and to ~~carry out~~ conduct its business as described in the Offering Memorandum (and any amendment or supplement thereto); and all the ~~terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and~~ outstanding shares of capital stock of each of the ~~Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum~~Significant Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and to the knowledge of such counsel, are wholly owned ~~beneficially~~ by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any ~~perfected~~ security ~~interests or~~interest, ~~to the best knowledge of such counsel~~lien, ~~any~~ adverse claim, equity or other ~~security interests, liens, encumbrances, equities or claims~~encumbrance, except as described in the Offering Memorandum and except for ~~pledges~~ the shares of ~~subsidiary~~ capital stock ~~under debt instruments~~of certain Subsidiaries pledged to Citibank as agent in connection with the Credit Agreement and/or to Meditrust; (iii) The authorized capital stock of the ~~statements~~ Company is as set forth under the ~~heading “Description of Notes”~~ caption "Capitalization" in the ~~Final~~ Offering Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) The Company has corporate power and authority to enter into this Agreement and the ~~execution~~ Registration Rights Agreement and ~~delivery of~~ to issue, sell and deliver the Notes to be sold by it to the Initial Purchasers as provided herein, and this Agreement and the Registration Rights Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company andauthorized, ~~when duly~~ executed and delivered by the Company ~~(assuming the due authorization~~and are valid, ~~execution and delivery thereof by the Trustee), the Indenture will be a legal, valid~~ legal and binding ~~agreement~~ agreements of the Company, enforceable against the Company in accordance with ~~its terms~~ their terms, except (~~subject,~~ A) as to enforcement of ~~remedies~~rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy and (B) subject to the qualification that the enforceability of the Company's obligations hereunder and thereunder may be limited by bankruptcy, ~~to applicable bankruptcy~~fraudulent conveyance, insolvency, reorganization, ~~insolvency~~moratorium, ~~moratorium or~~ and other laws relating to or affecting creditors’ ' rights generally ~~from time to time in effect).~~ and by general equitable principles; (v) The Indenture ~~meets the requirements for qualification under the TIA. (vi) the Notes have~~ has been duly ~~authorized by all necessary corporate action of the Company and~~and validly authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery ~~of the Indenture~~ by the ~~Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture)~~Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be is a ~~legal,~~ valid and binding agreement of the Company, enforceable ~~against the Company~~ in accordance with its ~~terms (subject~~terms, as subject to ~~enforcement~~ the qualification that the enforceability of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution the Company's obligations thereunder may be limited by ~~federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of~~bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and ~~the performance~~ other laws relating to or affecting creditors' rights generally and by ~~the Company~~ general equitable principles; and no qualification of ~~its obligations under, this Agreement, the Registration Rights Agreement,~~ the Indenture ~~and~~ under the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be 1939 Act is required ~~by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions~~ in connection with the offer and sale of the Notes ~~by the Initial Purchasers and except those that may be required by the Act~~ contemplated hereby or ~~the TIA~~ in connection with the ~~exchange offer contemplated~~ Exempt Resales; (vi) The Notes have been duly and validly authorized by the Company and when executed by the Company in accordance with the Indenture and, assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; (vii) Neither the offer, sale or delivery of the Notes, the execution, delivery or performance by the Company of this Agreement, the Registration Rights ~~Agreement~~Agreement or the Indenture, compliance by the Company with the provisions hereof or ~~(y) conflict with~~ thereof nor consummation by the Company of the transactions contemplated hereby or ~~result in~~ thereby constitutes or will constitute a breach or violation ~~of any of the terms and provisions~~ of, or ~~constitute~~ a default under, in any material respect, the certificate or articles of incorporation or bylaws or other organizational documents of the Company or any of the Significant Subsidiaries or any material agreement, indenture~~, mortgage, deed of trust~~, lease or other ~~material agreement or instrument, known to such counsel,~~ instrument to which the Company or any of ~~its significant subsidiaries~~ the Significant Subsidiaries is a party or by which ~~the Company or~~ any of ~~its significant subsidiaries~~ them or any of their respective properties ~~are bound~~is bound that is an exhibit to any Incorporated Document or is known to such counsel, or will result in the ~~charter documents~~ creation or ~~by-laws~~ imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of ~~its significant subsidiaries~~the Significant Subsidiaries pursuant to the terms of any material agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of the property or assets of any of them is subject that is an exhibit to any Incorporated Document or is known to such counsel, nor will any such action result in any violation in any material respect of any existing law, or any ~~statute or any~~ regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws and, in the case of the Registration Rights Agreement, the Act and the Exchange Act and the 1939 Act), judgment, ~~decree~~injunction, ~~order, rule~~ order or ~~regulation of any court or other governmental authority or any arbitrator~~ decree known to such ~~counsel and~~ counsel, applicable to the Company or ~~its significant subsidiaries~~the Significant Subsidiaries or any of their respective properties; (xviii) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property part of the Company (except as have been obtained under the Exchange Act, or ~~any~~ such as may be required under state securities or Blue Sky laws governing the purchase and distribution of ~~its subsidiaries is subject that would~~ the Notes, or such as may be required to ~~be described in a prospectus pursuant to~~ qualify the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) Indenture under the ~~Code~~1939 Act, and ~~the Company’s present and proposed method of operation,~~ such as ~~represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is~~ may be required in connection with the performance by the Company of its obligations under the Registration Rights Agreement, as to which such counsel need not express an opinion) for the valid issuance and sale of the Notes to the Initial Purchasers as contemplated by this ~~Agreement~~ Agreement; (ix) The Incorporated Documents (except for the financial statements and the ~~Final~~ notes thereto and the schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion), at the time they were filed, appear on their face to have complied as to form in all material respects with the requirements of the Exchange Act; (x) To the knowledge of such counsel, (A) there are no legal or governmental proceedings pending or threatened against the Company or any of the Subsidiaries, or to which the Company or any of the Subsidiaries, or any of their property, are subject, which are not disclosed in the Offering Memorandum and which, if adversely decided, are reasonably likely to cause a Material Adverse Effect or materially affect the issuance of the Notes or the consummation of the transactions contemplated by the Operative Documents and (B) there are no material agreements, contracts, indentures, leases or other instruments, that are not described in the Offering Memorandum (or any amendment or supplement thereto) or that are required to be filed as an exhibit to any Incorporated Document that are not filed as required; (xi) The statements in the Offering Memorandum, insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions, are accurate in all material respects and present fairly the information described therein; (xii) When the Notes are issued and delivered pursuant to this Agreement, such Notes will not be of the same class (within the meaning of Rule 144A(d)(3) under the Act) as any security of the Company that is listed on a national securities exchange registered under Section 6 of the Exchange Act or that is quoted in a United States automated interdealer quotation system; (xiii) No registration of the Notes under the Act is required for the sale of the Notes to the Initial Purchasers as contemplated in this Agreement or for the Exempt Resales (assuming (A) that any Eligible Purchaser who buys the Notes in the Exempt Resales is a Qualified Institutional Buyer and (B) the accuracy of the Initial Purchasers' representations and those of the Company in this Agreement regarding the absence of general solicitation in connection with the ~~initial~~ Exempt Resales); (xiv) The Company is not required to deliver the information specified in Rule 144A(d)(4) in connection with the offering and resale of the Notes by the Initial ~~Purchasers~~ Purchasers; and (xv) Although such counsel has not undertaken, except as otherwise indicated in ~~accordance with Section 8 of this Agreement~~their opinion, to determine independently, and ~~prior~~ does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Offering Memorandum, such counsel has participated in the preparation of the Offering Memorandum, including review and discussion of the contents thereof, and has reviewed the Incorporated Documents, and, relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company, nothing has come to the ~~commencement~~ attention of such counsel that has caused them to believe that the Offering Memorandum, as of its date and as of the ~~Exchange Offer (as defined in the Registration Rights Agreement)~~ Closing Date contained an untrue statement of a material fact or ~~the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not~~ omitted to state a material fact required to be ~~qualified under~~ stated therein or necessary to make the ~~TIA~~statements therein, in ~~each case assuming~~ light of the circumstances under which they were made, not misleading or that any amendment or supplement to the Offering Memorandum, as of its respective date, and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (~~i) (A)~~ it being understood that such counsel need express no opinion with respect to the ~~purchasers who buy such Notes~~ financial statements and the notes thereto and the schedules and other financial and statistical data included or incorporated by reference in the ~~initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”)~~ Offering Memorandum and information furnished by or ~~(B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy~~ on behalf of the Initial Purchasers~~’ representations in Section 8 and those~~ ). The opinion of such counsel shall be limited to the laws of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinionUnited States, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or and the ~~United States or the General Corporation Law~~ internal corporation law of the State of Delaware~~, to~~ . (d) The Initial Purchasers shall have received on the ~~extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the~~ Closing Date an opinion of ▇▇▇▇▇▇▇▇ ~~LLP~~▇. ~~An opinion of~~ ▇▇▇▇▇▇~~▇ LLP shall be delivered to~~ , Esq., General Counsel of the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersCompany, dated the Closing ~~Date, with respect to certain legal matters relating to this Agreement~~ Date and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory addressed to the Initial Purchasers to the effect that: (i) The Company is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the ~~representations and warranties~~ nature of its properties or the ~~Company in this Agreement are true and correct as if made on and as~~ conduct of its business requires such registration or qualification, except where the ~~Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part~~ failure so to register or qualify or to be ~~performed or satisfied at or prior to the Closing Date; and~~in good standing does not have a Material Adverse Effect; (ii) ~~subsequent~~ All the shares of capital stock of the Company outstanding prior to the ~~respective dates~~ issuance of the Notes have been duly authorized and validly issued, are fully paid and nonassessable; (iii) Each Subsidiary is duly registered and qualified to conduct its business and is in good standing as a foreign corporation or limited partnership in each jurisdiction or place where the nature of ~~which information is given~~ its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or to be in ~~the Final Memorandum~~ good standing does not have a Material Adverse Effect; (~~exclusive of any amendment or supplement thereto), neither~~ iv) Neither the Company nor any of ~~its subsidiaries has sustained~~ the Subsidiaries is in violation in any material ~~loss~~ respect of its respective certificate or ~~interference with~~ articles of incorporation or bylaws, or other organizational documents, or to the best knowledge of such counsel after reasonable inquiry, is in default in any material respect in the performance of any material obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective ~~businesses~~ properties may be bound, except as disclosed in the Offering Memorandum and except to the extent that any such violation or ~~properties from fire, flood, hurricane, accident or other calamity, whether or~~ default would not ~~covered by insurance, or from any labor dispute or any legal or governmental proceeding,~~ have a Material Adverse Effect; (v) Such counsel has no reason to believe that the Company and ~~there has~~ its Subsidiaries do not ~~been any materially adverse change~~ have all Permits (including, without limitation, such Permits as are necessary under such federal and state health care laws and under such HMO and similar licensure laws and such insurance laws and regulations as are applicable to the Company and its Subsidiaries) as are necessary to own, lease and operate its properties and conduct its business, except to the extent that the failure to have such Permits would not have a ~~change in management~~ Material Adverse Effect; and to the best knowledge of such counsel after reasonable inquiry there are no proceedings pending or ~~control),~~ threatened against the Company or ~~development involving a prospective materially adverse change, in~~ any of its Subsidiaries that may cause any such Permit that is material to the ~~condition (financial or otherwise), management, earnings, properties,~~ conduct of the business ~~affairs or business prospects, stockholders’ equity, net worth or results of operations~~ of the Company or any of its ~~subsidiaries~~Subsidiaries to be revoked, ~~taken as a whole~~withdrawn, ~~except in each case as described in~~ cancelled, suspended or ~~contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).~~not renewed; (evi) ~~Subsequent~~ Such counsel has no reason to believe that (a) the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction business practices of the ~~possible change~~Company or any of its Subsidiaries violate in any material respect any applicable provisions of federal or state law governing Medicare or any state Medicaid program, including without limitation, Sections 1320a-7a and 1320a-7b of Title 42 of the United States Code, or that any individual with an ownership or control interest, as defined in 42 U.S.C. ss.1320a-3(a)(3), in the ~~rating accorded~~ Company or any of ~~the Company’s securities by any “nationally recognized statistical rating organization”~~its Subsidiaries or who is an officer, director, or managing employee as ~~such term is~~ defined ~~for purposes~~ in 42 U.S.C. ss.1320a-5(b), of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company ~~and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On~~ or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.an

Appears in 1 contract

Sources: Purchase Agreement (Integrated Health Services Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from ▇▇~~the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ~~Chance US LLP~~& ▇▇▇▇▇▇ L.L.P., counsel for the ~~Company~~Issuers, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchasers, to the effect that: (i) ~~such counsel~~ Each of the Issuers and the Delaware Guarantors has ~~no reason to believe that (other than the financial statements and other financial information contained therein~~been duly incorporated, formed or organized, as ~~to which such counsel need express no opinion)~~ the ~~Final Memorandum~~case may be, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are~~ is validly existing as ~~corporations~~ a limited partnership, limited liability company or corporation, as applicable, and is in good standing under the laws of ~~their respective jurisdictions~~ the State of ~~incorporation~~ Delaware and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ has all ~~other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material~~ requisite limited partnership, limited liability company or ~~disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ corporate power and authority necessary to ~~own,~~ own or lease ~~and operate their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business, in each case as described in the ~~Final Memorandum,~~ Pricing Disclosure Package and the ~~Company~~ Final Memorandum in all material respects. (ii) The Partnership has ~~corporate power to enter into this Agreement~~the authorized, issued and outstanding capitalization set forth in the ~~Registration Rights Agreement~~ Pricing Disclosure Package and the ~~Indenture and to carry out all the terms and provisions hereof and thereof and~~ Final Memorandum as of the ~~Notes to be carried out by it~~dates specified therein; all of the issued and outstanding ~~shares of capital stock~~ equity interests (other than general partner interests) of each of the ~~Company’s significant subsidiaries~~Issuers and the Delaware Guarantors have been duly authorized and validly issued (in accordance with the Organizational Documents of each such entity), are fully paid (in the case of an interest in a limited partnership or limited liability company, to the extent required under the Organizational Documents of such entity) and nonassessable (except as ~~otherwise set forth~~ such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act or Sections 18-607 and 18-804 of the Delaware LLC Act, as applicable) and, to our knowledge, were not issued in violation of any preemptive or similar right; all of the ~~Final Memorandum~~issued and outstanding equity interests of Finance Co and each Delaware Guarantor are owned, ~~are owned beneficially~~ directly or indirectly, by the ~~Company~~ Partnership, free and clear of ~~any perfected security interests~~ all Liens (other than (i) those created by or arising under the Delaware General Corporation Law, the Delaware LLC Act or the Delaware LP Act, as the case may be; (ii) restrictions on transferability and other Liens described in the Pricing Disclosure Package, the Final Memorandum or the Organizational Documents; (iii) those arising under the Partnership Credit Agreement; and (iv) those imposed by the Act and the securities or “Blue Sky” laws of certain jurisdictions) (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership as debtor or, in the case of equity interests of a Delaware Guarantor owned directly by one or more other Delaware Guarantor, naming any such other Delaware Guarantor as debtor(s), is on file as of a recent date in the office of the Secretary of State of the State of Delaware or (B) otherwise known to ~~the best knowledge of~~ such counsel, ~~any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;~~without independent investigation. (iii) ~~the statements set forth~~ The Issuers and each Delaware Guarantor have all requisite corporate, limited partnership or limited liability company power and authority to execute, deliver and perform each of their obligations under the ~~heading “Description of~~ Indenture, the Notes~~” in~~ , the ~~Final Memorandum, insofar as such statements purport to summarize certain provisions of the~~ Exchange Notes and the ~~Indenture, provide a fair summary of such provisions~~Private Exchange Notes; ~~and~~ the ~~statements set forth~~ Indenture meets the requirements for qualification under the ~~heading “Certain Federal Income Tax Consequences” in~~ TIA; the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement Indenture has been duly ~~executed~~ and ~~delivered by the Company; (v) the execution and delivery of the Indenture have been duly~~ validly authorized by the ~~Company~~ Issuers and each Delaware Guarantor and, when duly executed and delivered by the ~~Company~~ Issuers and each Delaware Guarantor (assuming the due authorization, execution and delivery thereof by the ~~Trustee~~Trustee and the Washington Guarantor), will constitute the ~~Indenture will be a legal,~~ valid and legally binding agreement of the ~~Company~~Issuers and each Guarantor, enforceable against the ~~Company~~ Issuers and each Guarantor in accordance with its ~~terms (subject~~terms, as except that the enforcement thereof may be subject to ~~enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets~~ the ~~requirements for qualification under the TIA~~Enforceability Exceptions. (viiv) ~~the~~ The Notes have each been duly and validly authorized by ~~all necessary corporate action of~~ the ~~Company~~ Issuers and, ~~on and as of the Closing Date, the Notes will have been~~ when duly executed and delivered by the ~~Company and~~Issuers and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, ~~assuming~~ execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Issuers, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder~~ , and enforceable against the Issuers in accordance with their terms, except that the enforcement thereof may be subject to the Enforceability Exceptions. (v) The Guarantees have been duly and validly authorized by the Delaware Guarantors and when the Notes have been paid for by the Initial Purchasers in accordance with the terms of ~~securities~~ this Agreement (assuming the due authorization, execution and delivery of the ~~Company has any right which has not been fully exercised or waived to require~~ Indenture by the ~~Company to register~~ Trustee and the ~~offer or sale of any securities owned by such holder under~~ Washington Guarantor and the ~~Act in the offering~~ due authentication of the Notes ~~contemplated by this Agreement or in the Exchange Offer contemplated~~ by the ~~Registration Rights Agreement;~~Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the Guarantors, entitled to the benefits of the Indenture, and enforceable against the Guarantors in accordance with their terms, except that the enforcement thereof may be subject to the Enforceability Exceptions. (~~vii~~vi) ~~the~~ The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the ~~Company~~Issuers, and if and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the ~~Company~~ Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Issuers, entitled to the benefits of the Indenture, and enforceable against the Issuers in accordance with their ~~terms (subject~~terms, as except that the enforcement thereof may be subject to ~~enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)~~the Enforceability Exceptions. (~~viii~~vii) The Issuers and the ~~Company has~~ Delaware Guarantors have all requisite partnership, limited liability company or corporate power and authority to execute, deliver and perform ~~its~~ their obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the ~~Company~~ Issuers and the Delaware Guarantors and, when duly executed and delivered by the ~~Company~~ Issuers and the Delaware Guarantors (assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers~~Purchasers and the Washington Guarantor), will ~~be a legal,~~ constitute the valid and legally binding agreement of the ~~Company~~Issuers and the Guarantors, enforceable against the ~~Company~~ Issuers and the Guarantors in accordance with its ~~terms (subject~~terms, ~~as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and~~ except that (A) the enforcement thereof may be subject to the Enforceability Exceptions and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ixviii) The Issuers and the Delaware Guarantors have all requisite corporate, partnership or limited liability company power and authority to execute, deliver and perform their obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Issuers and the Delaware Guarantors of the transactions contemplated hereby have been duly and validly authorized by the Issuers and the Delaware Guarantors. This Agreement has been duly executed and delivered by the Issuers and the Delaware Guarantors. (a) The descriptions of the Indenture, the Notes and the Registration Rights Agreement contained in the Pricing Disclosure Package and the Final Memorandum are accurate in all material respects, and (b) the ~~execution~~ statements under the caption “Certain United States Federal Income and ~~delivery by~~ Estate Tax Considerations” in the ~~Company of,~~ Pricing Disclosure Package and the Final Memorandum insofar as they purport to constitute a summary of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects, subject to the assumptions and qualifications set forth therein. (x) The execution, delivery and performance ~~by the Company~~ of ~~its obligations under,~~ this Agreement, the Indenture, the Registration Rights ~~Agreement~~Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the ~~Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering~~ issuance and sale of the Notes to the Initial ~~Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do~~ Purchasers) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with constitute or result in a breach or ~~violation~~ a default under (or an event that with notice or passage of time or both would constitute a default under) any of (i) the terms or provisions of any Contract listed on Annex B hereto, (ii) the Organizational Documents of any of the ~~terms and provisions of~~Issuers or the Guarantors, or ~~constitute a default under~~(iii) any statute, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of (excluding any ~~court~~ securities laws, rules or ~~other governmental authority or any arbitrator~~ regulations) known to such counsel ~~and~~ to be applicable to the ~~Company~~ Issuers or ~~its significant subsidiaries;~~any of the Guarantors or any of their respective properties or assets, except, with respect to clauses (i) and (iii) only, for any such conflict, breach or violation that could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. (xxi) No consent, approval, authorization or order of any governmental authority is required for the ~~Company is not an “investment company” and, after giving effect to~~ issuance and sale by the ~~Offering~~ Issuers of the Notes to the Initial Purchasers or the consummation by the Issuers of the other transactions contemplated hereby, except such as may be required under securities laws, as to which such counsel need express no opinion in this paragraph, and those which have previously been obtained. (xii) None of the Issuers or the Guarantors is, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds ~~therefrom~~from such sale (as described in the Pricing Disclosure Package and the Final Memorandum under the caption “Use of Proceeds”) will be, ~~will not be~~ an “investment company”, ” as such term is defined in the ~~1940 Act; and (xi) such counsel does not know~~ Investment Company Act of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation1940, as ~~represented by the Company, will permit the Company to continue to so qualify~~amended. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers ~~as contemplated by this Agreement and the Final Memorandum~~ or in connection with the initial resale of the Notes by the Initial ~~Purchasers~~ Purchasers, in ~~accordance with Section 8 of~~ each case, as contemplated by this ~~Agreement~~Agreement and the Pricing Disclosure Package and the Final Memorandum, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA. At the time the foregoing opinion is delivered, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall additionally state that it has participated in conferences with officers and other representatives of the Issuers, representatives of the independent registered public accountants for the Issuers, representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Pricing Disclosure Package and the Final Memorandum and related matters were discussed, and, although it has not independently verified, and is not passing on and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Pricing Disclosure Package and the Final Memorandum (except to the extent specified in subsection 7(a)(ix)), no facts have come to its attention which lead it to believe that the Pricing Disclosure Package, as of the Time of Execution or at the Closing Date, or that the Final Memorandum, as of its date or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need make no comment with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Issuers’ books and records included in the Pricing Disclosure Package or the Final Memorandum). The opinion and advice of ▇▇▇▇▇▇ ~~LLP~~& ▇▇▇▇▇▇ L.L.P. described in this Section 7 shall be rendered to the Initial Purchasers at the request of the Partnership and shall so state therein. (b) 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 ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Initial Purchasers~~, dated the Closing Date~~, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ~~& ▇▇▇▇▇▇▇ LLP~~ L.L.P. shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) ~~The~~ On the date hereof, the Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Independent Accountants a comfort letter ~~or letters dated~~dated the date hereof, ~~respectively~~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 ~~date hereof and~~ 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. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the ~~Company~~ Issuers and the Guarantors contained in this Agreement ~~are~~ shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Issuers’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the ~~Company has~~ date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on ~~its~~ their part to be performed or satisfied hereunder at or prior to the Closing Date; and ~~(ii) subsequent to~~ , except as described in the ~~respective dates as of which information is given in~~ Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement ~~thereto~~thereto after the date hereof), ~~neither~~ subsequent to the ~~Company nor~~ date of the most recent financial statements in such 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. (e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date. (f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers or any of ~~its subsidiaries has~~ the Material Subsidiaries shall have sustained any ~~material~~ loss or interference with ~~their respective businesses~~ respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor ~~dispute~~ dispute, slow down or work stoppage or from any legal or governmental proceeding, ~~and there has not been any materially adverse change (including~~order or decree, ~~without limitation~~which loss or interference, ~~a change in management~~ individually or ~~control), or development involving a prospective materially adverse change,~~ in the ~~condition (financial~~ aggregate, has or ~~otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as~~ would be reasonably likely to have a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties theretoMaterial Adverse Effect. (g) ~~On the Closing Date, the~~ The Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.received:

Appears in 1 contract

Sources: 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 ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ the opinion, dated the Closing Date and addressed to the Initial Purchaser, of Kapl▇▇, ▇▇ra▇▇▇▇ ~~Chance US LLP~~▇▇▇ Kapl▇▇, ▇.A., Minnesota counsel for the Company, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been~~ Holdings is duly ~~organized and are~~ incorporated, validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ the State of ~~incorporation~~ Minnesota and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to ~~own, lease and operate their respective~~ own its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the Final Memorandum. Each of the Company and Holdings is duly qualified to do business as a foreign corporation in good standing in the State of Missouri. (ii) Each of the Company and Holdings has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the Private Exchange Notes; the Indenture has been duly and validly authorized by the Company and Holdings; the Notes have been duly and validly authorized by the Company; the Guarantee has been duly and validly authorized by Holdings; and the Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company. (iii) Each of the Company and Holdings has all requisite corporate power and authority to ~~enter into~~ execute, deliver and perform its obligations under the Registration Rights Agreement; and the Registration Rights Agreement has been duly and validly authorized by the Company and Holdings. (iv) Each of the Company and Holdings has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; and this Agreement and the consummation by the Company and Holdings of the transactions contemplated hereby have been duly and validly authorized by the Company and Holdings. (v) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement and the ~~Indenture~~ consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to ~~carry out~~ the Initial Purchaser) will not constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the certificate of incorporation or bylaws (or similar organizational document) of the Company or Holdings, or (ii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the ~~terms~~ accuracy of the representations and ~~provisions~~ warranties of the Initial Purchaser in Section 8 hereof and ~~thereof~~ the representations and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action warranties of the Company and Holdings in Section 2(dd) hereof) any statute or regulation which to such counsel's actual knowledge are applicable to the ~~Agreement has been duly executed~~ Company or Holdings or any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect. The opinion of Kapl▇▇, ▇▇ra▇▇▇▇ ▇▇▇ Kapl▇▇, ▇.A. described in this Section may be limited to matters of Minnesota law and ~~delivered by~~ shall be rendered to the Initial Purchaser at the request of the Company and shall so state therein. (b) On the Closing Date, the Initial Purchaser shall have received the opinion, dated the Closing Date and addressed to the Initial Purchaser, of O'Su▇▇▇▇▇▇ ▇▇▇ev & Karabell, LLP, counsel for the Company;, in form and substance satisfactory to counsel for the Initial Purchaser, to the effect that: (vi) The Indenture meets the ~~execution and delivery of~~ requirements for qualification under the ~~Indenture have been duly authorized by~~ TIA; the ~~Company and~~Indenture, when duly executed and delivered by the Company and Holdings (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the valid and legally binding agreement of the Company and Holdings, enforceable against the Company and Holdings in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (ii) The Notes are in the form contemplated by the Indenture. The Notes, when duly executed and delivered by the Company and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will ~~be a legal,~~ constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with ~~its terms~~ their terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect). The Indenture meets~~ and (ii) general principles of equity and the ~~requirements for qualification under~~ discretion of the ~~TIA~~court before which any proceeding therefor may be brought. (viiii) The Guarantee is in the form contemplated by the Indenture. The Guarantee, when duly executed and delivered by Holdings, and when the Notes ~~have been~~ are duly ~~authorized by all necessary corporate action of the Company and~~and validly authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company ~~and, assuming due authentication~~ and paid for by the ~~Trustee, will be the legal, valid and binding obligations of the Company, enforceable~~ Initial Purchaser in accordance with ~~their~~ the terms of this Agreement, will constitute the valid and legally binding agreement of Holdings, enforceable against Holdings in accordance with its terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect~~and (ii) general principles of equity and ~~entitled to~~ the ~~benefits~~ discretion of the ~~Indenture; no holder of securities of the Company has~~ court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;proceeding therefor may be brought. (~~vii~~iv) ~~the~~ The Exchange Notes and the Private Exchange ~~Notes have been duly authorized by the Company~~Notes, ~~and~~ when ~~the Exchange Notes and the Private Exchange Notes are~~ duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (v) The Registration Rights Agreement, when duly executed and delivered by the Company and Holdings (assuming due authorization, execution and delivery thereof by the Initial Purchaser), will constitute the valid and legally binding agreement of the Company and Holdings, enforceable against the Company and Holdings in accordance with its terms, except that (A) the enforcement thereof may be subject to ~~time~~ (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and ~~except that~~ (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations~~). (ix)~~ . No opinion need be given with respect to the ~~execution and delivery by~~ enforceability of the ~~Company of, and the performance by the Company~~ additional in- terest provisions contained in Section 4 of ~~its obligations under, this Agreement,~~ the Registration Rights Agreement. (vi) The Indenture, ~~the Indenture and~~ the Notes, the ~~Exchange Notes~~ Guarantee and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights ~~Agreement, or~~ Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum. (yvii) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to To such counsel's actual knowledge, no legal or governmental proceedings are pending to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries Holdings is a party or to which the property or assets of the Company or ~~any of its subsidiaries~~ Holdings is subject ~~that~~ which would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the other transactions described in the Final Memorandum under the caption "Use of Proceeds." (viii) The execution, delivery and performance by the Company and Holdings of this Agreement, the Indenture, the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation, the issuance and sale of the Securities to the Initial Purchaser) will not constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation or any ~~statutes~~of (i) the terms or provisions of any Contract set forth on a list attached to an officer's certificate of the Company and certified as being all material real estate leases, ~~regulations~~all material agreements entered into in connection with the Recapitalization and all agreements relating to indebtedness for borrowed money; (ii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof and the representations and warranties of the Company and Holdings in Section 2(dd) hereof) any statute, or regulation actually known to such counsel to be applicable to the Company or Holdings or any of their respective properties or assets, or (iii) any judgment, decree or order set forth on a list attached to an officer's certificate of the Company and certified as being all material judgments, decrees and orders naming Holdings or the Company and binding on it or its property except for any such breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect. (ix) Assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof and the representations and warranties of the Company and Holdings in Section 2(dd) hereof, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company of the Notes to the Initial Purchaser or the consummation by the Company of the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained. (x) To the actual knowledge of such counsel, there are no material contracts or other documents ~~that~~ to which the Company or Holdings is a party which would be required to be described in a prospectus pursuant to the Act that are not described ~~or incorporated~~ in the Final Memorandum. (~~xii~~xi) ~~commencing with the Company’s taxable year ended December 31, 1998,~~ Neither the Company ~~was organized~~ nor Holdings is, or immediately after the sale of the Securities to be sold hereunder and ~~has operated~~ the application of the proceeds from such sale (as described in ~~conformity with~~ the ~~requirements for qualification as a real estate investment trust (“REIT”)~~ Final Memorandum under the ~~Code~~caption "Use of Proceeds") will be, ~~and~~ an "investment company" as such term is defined in the ~~Company’s present and proposed method~~ Investment Company Act of ~~operation~~1940, as ~~represented by the Company, will permit the Company to continue to so qualify~~amended. (~~xiii~~xii) No registration under the Act of the ~~Notes~~ Securities is required in connection with the sale of the ~~Notes~~ Securities to the Initial ~~Purchasers~~ Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the ~~Notes~~ Securities by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) ~~(A)~~ that the purchasers who buy such ~~Notes~~ Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or accredited investors as defined in Rule 501(a) (1), (2), (3) or (B7) ~~that~~ promulgated under the ~~offer or sale of the Notes is made in an offshore transaction as defined in Regulation S~~Act ("Accredited Investors"), (ii) the accuracy of the Initial ~~Purchasers’~~ Purchaser's representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general ~~solicitation~~ solici- tation in connection with the sale of such ~~Notes~~ Securities to the Initial ~~Purchasers~~ Purchaser and the initial resale thereof and (iii) the due performance by the Initial ~~Purchasers~~ Purchaser of the agreements set forth in Section 8 hereof~~. In rendering any such opinion, such counsel may rely, as to matters of fact, to~~ . (xiii) Neither the ~~extent such counsel deems proper, on certificates of responsible officers~~ consummation of the ~~Company and public officials and~~transactions contemplated by this Agreement nor the sale, ~~as to matters involving the application of laws of any jurisdiction other than the State of New York~~ issuance, execution or ~~the United States or the General Corporation Law~~ delivery of the ~~State~~ Notes will violate Regulation G, T, U or X of ~~Delaware~~the Board of Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, ~~to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇~~O'Su▇▇▇▇▇▇ ~~LLP~~▇▇▇ev & Karabell, LLP shall additionally state that it has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except as expressly set forth in paragraph (vi) above), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need make no statement of belief and express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). An The opinion of ▇O'Su▇▇▇▇▇▇ ▇▇▇ev & Karabell LLP described in this Section shall be ~~delivered~~ rendered to the Initial ~~Purchasers~~ Purchaser at the request of the Company and ~~counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers~~shall so state therein. References to the Final Memorandum in this subsection (ab) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (bc) ~~The~~ On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from ▇▇▇▇~~the opinion, in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇, ▇▇~~▇ LLP, counsel~~ unsel for the Initial ~~Purchasers, dated the Closing Date~~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, ~~▇▇▇▇~~Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇ ▇▇▇~~▇▇▇ LLP shall~~ ll have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (cd) The Initial ~~Purchasers~~ Purchaser shall have received from ~~PricewaterhouseCoopers LLP~~ the Independent Accountants a comfort letter or letters ~~dated, respectively,~~ dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial ~~Purchasers~~Purchaser. (de) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company and Holdings contained in this Agreement ~~are~~ shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company ~~has~~ shall have performed in all material respects all covenants and agreements and satisfied all conditions on ~~its~~ their part to be performed or satisfied hereunder at or prior to the Closing Date; and ~~(ii) subsequent to the respective dates~~ , except as ~~of which information is given~~ described in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.theret

Appears in 1 contract

Sources: Purchase Agreement (Young America Holdings Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase and pay for the Firm Notes ~~shall,~~ shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties made herein on the part of the Company, to the performance by the Company of its obligations to be performed hereunder prior to the Firm Closing Date, and to the following conditions: (a) On the Firm Closing Date, the Initial Purchasers shall have received from Eric H. Peterson, Executive Vice Pre▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇al Counsel of TXU Corp., Hunton & Williams LLP, counsel for the Compan▇, Thelen Reid & Priest LLP, counsel fo▇ ▇▇▇ ▇▇▇▇▇ny, and Pillsbury Winthrop LLP, counsel for the Initial Purchasers, opinions in substantially the form and substance prescribed in Schedules II, III, IV and V hereto with such changes therein as may be agreed upon by the Company and the Representative on behalf of the Initial Purchasers, with the approval of counsel for the Initial Purchasers. (b) On and as of the Firm Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP a letter to the effect that (i) they are independent certified public accountants with respect to the Company, within the meaning of the Securities Act and the applicable published rules and regulations thereunder, (ii) in their opinion, except as stated in the Offering Memorandum, the consolidated financial statements audited by them and included or incorporated by reference in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related rules and regulations by the SEC thereunder, (iii) on the basis of a reading of the unaudited amounts of operating revenues and net income included or incorporated by reference in the Offering Memorandum and the related consolidated financial statements from which these amounts were derived, the latest available unaudited consolidated financial statements of the Company and the minute books of the Company and inquiries of officers of the Company and of certain direct and indirect subsidiaries of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the several Initial Purchasers' purposes), nothing has come to their attention which caused them to believe that (A) any material modifications should be made to the unaudited condensed consolidated financial statements of the Company included in the quarterly report, incorporated by reference in the Offering Memorandum, for them to be in conformity with generally accepted accounting principles, (B) the unaudited condensed consolidated financial statements included in the quarterly report do not conform in all material respects with the applicable accounting requirements of the Exchange Act and the related rules and regulations adopted by the SEC and (C) at a specified date not more than five days prior to the date of such letter, there was any change in the capital stock (which includes common stock and preference stock) of the Company, short-term bank loans, commercial paper, long term debt or long-term debt due currently of the Company or decrease in its net assets (excluding changes due to Other Comprehensive Income), in each case as compared with amounts shown in the most recent consolidated balance sheets of the Company incorporated by reference in the Offering Memorandum, except in all instances for changes or decreases that the Offering Memorandum discloses have occurred or may occur or which are occasioned by the acquisition of long-term debt for sinking fund purposes, or which are described in such letter, and (iv) they have compared the dollar amounts (or percentages or ratios derived from such dollar amounts) and other financial information included or incorporated by reference in the Offering Memorandum as reasonably requested by the Initial Purchasers (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its consolidated subsidiaries subject to the internal controls of the accounting system of such companies or are derived indirectly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (c) Since the most recent dates as of which information is given in the Offering Memorandum, there shall not have been any material adverse change in the business, property or financial condition of the Company and its subsidiaries, considered as a whole, whether or not in the ordinary course of business, and, since such dates, there shall not have been any material transaction entered into by any of the Company and the Material Subsidiaries, in each case other than transactions in the ordinary course of business and transactions contemplated by the Offering Memorandum, and at the Firm Closing Date the Initial Purchasers shall have received a certificate to such effect dated the Firm Closing Date and signed by an officer of the Company. (d) All opinions, certificates, letters and documents to be provided in connection with the issuance and sale of the Firm Notes as provided herein, including the Registration Rights Agreement, shall be satisfactory in form and substance to counsel for the Initial Purchasers. (e) At the Firm Closing Date, (i) the Notes shall be rated at least Ba1 by Moody's Investors Service, Inc. ("Mo▇▇▇'▇") and BBB- by Standard & Poor's, a division of the McGraw Hill Companies, Inc. ("S&P"), and the Company shall have delivered to the Initial Purchasers a letter from each such rating agency, or other evidence satisfactory to the Representative on behalf of the Initial Purchasers, confirming that the Notes have such ratings, and (ii) neither Moody's nor S&P shall have, since the date of this Agreement, downgraded or publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Notes or any securities of the Company which are of the same class as the Notes, or of the financial condition of the Company. (f) At the Firm Closing Date, the Shares issuable upon conversion of the Notes shall have been approved for listing on the New York, Chicago and Pacific stock exchanges upon notice of issuance. (g) In the event that the Underwriters exercise the option provided in Section 3(b) hereof to purchase all or any portion of the Option Notes, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company hereunder shall be true and correct as ~~of the date hereof~~ of, and as ~~of each~~ if made on, the applicable Option Closing Date, ~~as if made on~~ and ~~as of each~~ at the applicable Option Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) the Underwriters shall have received a certificate, dated such ~~counsel has no reason to believe that (other than the financial statements and other financial information contained therein~~Option Closing Date, ~~as to which such counsel need express no opinion) the Final Memorandum, as~~ of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light an officer of the ~~circumstances under which they were made~~Company confirming that the certificate delivered at the Firm Closing Date pursuant to Section 8(c) hereof is true and correct as of, ~~not misleading.~~and as if made on, such Option Closing Date; (ii) the ~~Company and each~~ Underwriters shall have received the favorable opinions of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiariesEric H. Peterson, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇Hunton & Williams ▇▇▇ ~~LLP. An opinion of ▇▇▇▇~~▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇ & Priest L▇▇~~▇ & ▇▇▇~~, ▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇~~▇▇ & ▇▇▇▇▇▇▇ LLP~~ tance satisfactory to Counsel for the Initial Purchasers, and of Pillsbury Winthrop LLP, each dated such Option Closing Date, each relating to the Option Notes and otherwise to the same effect as the opinions required by Section 8(a) hereof; (iii) the Underwriters shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter ~~or letters dated, respectively, the date hereof and the Closing Date~~from Deloitte & Touche LLP, in form and substance satisfactory to ~~counsel for~~ the Initial ~~Purchasers. (d) The Company shall have furnished or caused to be~~ Purchasers and dated such Option Closing Date, substantially the same in form and substance as the letter furnished to the Initial Purchasers at pursuant to Section 8(b) hereof, except that the ~~Closing~~ "specified date" in the letter furnished pursuant to this Section 8(g)(iii) shall be a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or date not more than five days prior to ~~the~~ such Option Closing Date; and (iiA) ~~subsequent to~~ the ~~respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)~~Notes shall be rated at least Ba1 by Moody's and BBB- by S&P, ~~neither~~ and the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have ~~been executed and~~ delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers ~~and counsel for~~ a letter from each such rating agency, or other evidence satisfactory to the Representative on behalf of the Initial Purchasers, confirming that the Notes have such ratings, and (B) neither Moody's nor S&P shall have, since the date of this Agreement, downgraded or publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Notes or any securities of the Company which are of the same class as the Notes, or of the financial condition of the Company. The ~~Company~~ failure of one or more conditions, specified in this Section 8, shall ~~furnish to~~ permit the termination of this Agreement by the Representative on behalf of the Initial Purchasers upon notice thereof to the Company. Any such ~~conformed copies~~ termination shall be without liability of ~~such opinions, certificates, letters,~~ any party to any other party except as otherwise provided in Sections 6(f) and ~~documents in such quantities as the Initial Purchasers shall reasonably request~~9 hereof.

Appears in 1 contract

Sources: Purchase Agreement (Txu Corp /Tx/)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of ~~its covenants and agreements hereunder~~ their respective obligations hereunder, and to each of the following additional terms and conditions: (a) ~~On the Closing Date, the~~ No Initial ~~Purchasers~~ Purchaser shall have ~~received~~ discovered and disclosed to the Company prior to or on such Delivery Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a ~~legal~~ fact which, in the opinion ~~from~~ of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~▇ Chance US LLP~~▇, counsel ~~for the Company, dated the Closing Date,~~ to the ~~effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein~~Initial Purchasers, ~~as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a~~ is material ~~fact or omitted~~ or omits to state any fact which is material ~~fact~~ and necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Transaction Documents, the Securities, the Conversion Shares and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Transaction Documents, the Securities, the Conversion Shares and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers; and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP shall have furnished to the Initial Purchasers their written opinion, as counsel to the Company and ~~each~~ the Guarantors, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that: (i) Each of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have~~ Company and the Guarantors has been duly organized and ~~are~~ is validly existing as ~~corporations~~ a corporation in good standing under the laws of their respective jurisdictions of ~~incorporation~~ incorporation, and ~~are~~ is duly qualified to ~~transact~~ do business ~~as foreign corporations~~ and ~~are~~ is in good standing ~~under~~ (or equivalent status) as a foreign corporation in each jurisdiction in which its ownership or lease of property or the ~~laws~~ conduct of ~~all other jurisdictions~~ its business requires such qualification, except where ~~such counsel has been advised that~~ the failure to be so qualified would ~~amount to~~ not have a ~~material liability or disability to the Company~~ Material Adverse Effect, and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ has all corporate power and authority necessary to ~~own, lease and operate their respective~~ own or hold its properties and ~~assets and~~ conduct ~~their respective businesses~~ the business in which it is engaged; (ii) The Company has an authorized capitalization as ~~described~~ set forth in the ~~Final~~ Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued ~~and outstanding~~ shares of capital stock of ~~each~~ the Company have been duly and validly authorized and conform to the description thereof contained in the Offering Memorandum in the section entitled "Description of Capital Stock"; (iii) The Conversion Shares that are authorized on the date hereof have been duly authorized and validly reserved for issuance upon conversion of the ~~Company’s significant subsidiaries~~CODES and are free of preemptive rights; and the Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable, except as ~~otherwise~~ provided in Wisconsin Statutes Section 180.0622(2)(b) as judicially interpreted; (iv) The statements in the Offering Memorandum under the captions "Description of the CODES" and "Description of Capital Stock", insofar as they purport to summarize the provisions of the Indenture, the Registration Rights Agreement, the Securities and the Common Stock (including the Conversion Shares) are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act; (v) There are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's articles of incorporation or bylaws, and there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to any agreement or other instrument to which the Company is a party known to such counsel; (vi) To the knowledge of such counsel and other than as set forth in the ~~Final~~ Offering Memorandum, there are ~~owned beneficially by~~ no legal or governmental proceedings pending to which the Company ~~free and clear~~ or any of its subsidiaries is a party or of which any ~~perfected security interests or~~property or assets of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would reasonably be expected to have a Material Adverse Effect; and, to the best knowledge of such counsel, ~~any other security interests, liens, encumbrances, equities~~ no such proceedings are overtly threatened or ~~claims, except for pledges of subsidiary stock under debt instruments~~contemplated by governmental authorities or threatened by others; (~~iii~~vii) The execution, delivery and performance of this Agreement, the ~~statements set forth~~ Indenture, the Guarantees and the Registration Rights Agreement and the issuance of the CODES and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificates or articles of incorporation or bylaws of the Company or any of the Guarantors or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or the Guarantors or any of their respective properties or assets; and, except as may be required by the securities or "blue sky" laws of any state of the United States in connection with the sale of the Securities, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company and the Guarantors and the issuance of the Securities and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby; (viii) No registration of the Securities or the Conversion Shares under the ~~heading “Description~~ Securities Act, and no qualification of ~~Notes”~~ the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Securities or in connection with the conversion of the Securities into Conversion Shares, in each case, in the ~~Final~~ manner contemplated by the Offering Memorandum, this Agreement and the Indenture; (ix) The statements in the Offering Memorandum under the caption "Certain United States Federal Income Tax Considerations", insofar as ~~such statements~~ they purport to ~~summarize certain provisions~~ constitute summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material ~~respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder~~respects; (ivx) The Company is not an "investment company" within the ~~execution and delivery~~ meaning of ~~this Agreement have been duly authorized by all necessary corporate action~~ the Investment Company Act of 1940, as amended; (xi) Each of the Company and the Guarantors has all necessary corporate right, power and authority to execute and deliver each of the Transaction Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Securities and the Conversion Shares to the Initial Purchasers; (xii) This Agreement has been duly ~~executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and~~authorized, ~~when duly~~ executed and delivered by the Company and the Guarantors; (xiii) The Indenture has been duly authorized, executed and delivered by the Company and the Guarantors and, assuming ~~the~~ due authorization, execution and delivery thereof by the Trustee), ~~the Indenture will be~~ constitutes a ~~legal,~~ legally valid and binding agreement of the ~~Company,~~ Company and the Guarantors enforceable against the Company and the Guarantors in accordance with its terms ~~(subject~~except as the enforceability thereof may be limited by bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency,~~ moratorium and other similar laws relating to or ~~other laws~~ affecting creditors’ ' rights ~~generally from time~~ generally, subject to ~~time~~ general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in ~~effect~~a proceeding in equity or at law)~~. The Indenture meets the requirements for qualification under the TIA.~~; (vixiv) ~~the Notes have~~ The Registration Rights Agreement has been duly ~~authorized by all necessary corporate action of the Company and~~authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company and the Guarantors and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), ~~will be~~ constitutes a ~~legal,~~ valid and legally binding agreement of the Company and the Guarantors enforceable against the Company and the Guarantors in accordance with its terms except as rights to indemnity contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law); (xv) The CODES have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with ~~its~~ their terms ~~(subject,~~ except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder the enforceability thereof may be limited by ~~federal~~ bankruptcy, insolvency, reorganization, moratorium and ~~state securities~~ other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and ~~public policy considerations~~to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law).; (ixxvi) ~~the execution and delivery~~ The Guarantees have been duly authorized by the ~~Company of,~~ Guarantors and when duly endorsed on the ~~performance~~ CODES in accordance with terms of the Indenture and delivered to and paid for by the ~~Company~~ Initial Purchasers, will constitute legally valid and binding obligations of ~~its obligations under~~the Guarantors, entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (xvii) The execution, delivery and performance of this Agreement, the Indenture, the Guarantees and the Registration Rights ~~Agreement, the Indenture~~ Agreement and the ~~Notes,~~ issuance of the ~~Exchange Notes~~ Securities and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Conversion Shares and the consummation of the ~~other~~ transactions ~~herein~~ contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms ~~and~~ or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, ~~lease~~ loan agreement or other ~~material~~ agreement or ~~instrument,~~ instrument known to such ~~counsel,~~ counsel to which the Company or any of ~~its significant subsidiaries~~ the Guarantors is a party or by which the Company or the Guarantors are bound or to which any of ~~its significant subsidiaries~~ the property or ~~any of their respective properties are bound, or the charter documents or by-laws~~ assets of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that Guarantors are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereofsubject. In rendering ~~any~~ such opinion, such counsel may ~~rely, as~~ state that its opinion is limited to matters ~~of fact, to~~ governed by the ~~extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of~~ federal laws of ~~any jurisdiction other than the State of New York or~~ the United States or of America, the ~~General Corporation Law~~ laws of the State of ~~Delaware~~Wisconsin and the Wisconsin Business Corporation Law and may state that it is relying, ~~to the extent satisfactory~~ in ~~form and scope to counsel for the Initial Purchasers~~respect of matters of New York law, upon ~~the opinion of~~ ▇▇▇▇▇▇▇ ~~LLP. An opinion of~~ ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~▇▇, and in respect of matters of fact, upon certificates of officers of the Company, provided that such counsel ~~for~~ shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, ~~dated~~ to the ~~Closing Date~~effect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with ~~respect to certain legal matters relating to this Agreement~~ officers and ~~such~~ other ~~related matters as~~ representatives of the Company, the Company's independent public accountants, the Initial Purchasers ~~may reasonably require. In rendering~~ and their counsel, at which the contents of the Offering Memorandum (including the Incorporated Documents) were discussed, and while such ~~opinion~~counsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum (including the Incorporated Documents) except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (including the Incorporated Documents), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that such counsel need express no belief as to the financial statements, financial and statistical data and supporting schedules contained in the Offering Memorandum (or in any Incorporated Documents). (d) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~ ▇▇, shall have ~~received~~ furnished to the Initial Purchasers its written opinion, as counsel to the Initial Purchasers, addressed to the Initial Purchasers and ~~may rely upon~~ dated such ~~certificates~~ Delivery Date, in form and ~~other documents and information as it may reasonably request~~ substance satisfactory to ~~pass upon such matters~~the Initial Purchasers. (ce) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Accountants a letter ~~or letters dated, respectively,~~ (the ~~date hereof and the Closing Date~~"initial comfort letter"), in form and substance satisfactory to ~~counsel for~~ the Initial Purchasers, addressed to the Initial Purchasers and dated the date thereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to initial purchasers in connection with comparable private placements, in form and substance satisfactory to the Initial Purchasers; and with respect to the Option Delivery Date, the Company shall have furnished to the Initial Purchasers the letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter. (df) The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers at on the ~~Closing~~ applicable Delivery Date a ~~certificate of its Chairman~~ certificate, dated such Delivery Date and delivered on behalf of the ~~Board,~~ Company by its ~~President or its Chief Executive Officer~~ chief executive officer and its ~~Chief Financial Officer~~ chief financial officer, in form and substance satisfactory to the Initial ~~Purchasers~~ Purchasers, to the effect that: (i) the ~~representations~~ representations, warranties and ~~warranties~~ agreements of the Company and each of the Guarantors in ~~this Agreement~~ Section 1 are true and correct as ~~if made on~~ of the date given and as of ~~the Closing~~ such Delivery Date; and the Company ~~has performed~~ and the Guarantors have complied in all ~~covenants and~~ material respects with all their respective agreements ~~and satisfied all conditions on its part~~ contained herein to be performed ~~or satisfied at or~~ prior to or on such Delivery Date and the ~~Closing Date; and~~conditions set forth in Sections 3(f) and 3(m), have been fulfilled; (ii) ~~subsequent to~~ since the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (Apogent Technologies Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ Purchaser hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the ~~Company~~ Washington Mutual Entities contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements hereunder~~ obligations hereunder, and to the satisfaction of each of the following additional ~~conditions~~conditions and agreements: (a) ~~On the Closing Date, the~~ The Initial ~~Purchasers~~ Purchaser shall not have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date,~~ discovered and disclosed to the ~~effect that: (i)~~ Washington Mutual Entities prior to or on such ~~counsel has no reason to believe~~ Delivery Date that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date~~ Offering Memorandum or ~~the date of such opinion, included~~ any amendment or ~~includes~~ supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchaser, is material ~~fact or omitted~~ or omits to state ~~any~~ a fact which is material ~~fact~~ and necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iib) All corporate and trust proceedings, as appropriate, and other legal matters incident to the authorization, form and validity of the Operative Documents (including the global certificates for the Unit Securities), the Unit Securities and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents (including the global certificates for the Unit Securities), the Unit Securities and the transactions contemplated thereby and the Offering Memorandum shall be satisfactory in all material respects to counsel to the Initial Purchaser; and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (c) ▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Company, shall have furnished to the Initial Purchaser its written opinion, as counsel to the Company, addressed to the Initial Purchaser and dated such Delivery Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that: (i) The Company and each of its ~~“significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ Significant Subsidiaries have been duly ~~organized~~ incorporated and are validly existing as corporations or depository institutions in good standing under the laws of their respective jurisdictions of incorporation and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ have all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority necessary to ~~own, lease and operate~~ own or hold their respective properties and ~~assets~~ conduct the businesses in which they are engaged; (ii) The Company and ~~conduct their respective businesses~~ the Trust has an authorized capitalization as ~~described~~ set forth in the ~~Final~~ Offering Memorandum, ; and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued ~~and outstanding~~ shares of capital stock of each Significant Subsidiary of the ~~Company’s significant subsidiaries,~~ Company have been duly and validly authorized and issued and are fully paid and non-assessable and (except ~~as otherwise set forth in the Final Memorandum,~~ for directors' qualifying shares) are owned of record and, to the best of such counsel's knowledge, beneficially by the ~~Company~~ Company, either directly or indirectly, free and clear of ~~any perfected security interests or, to the best knowledge of such counsel, any other security interests,~~ all liens, encumbrances, equities or claims~~, except for pledges of subsidiary stock under debt instruments;~~. (iii) ~~the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions~~ Each of the ~~Notes~~ Original Indenture and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement Supplemental Indenture has been duly ~~executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and~~authorized, ~~when duly~~ executed and delivered by the Company ~~(assuming the due authorization, execution~~ and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the ~~Initial Purchasers), will be~~ Indenture Trustee) constitutes a ~~legal,~~ valid and binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its ~~terms (subject~~terms, as subject to ~~enforcement~~ the effects of ~~remedies~~bankruptcy, ~~to applicable bankruptcy~~insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. (iv) Each of the Original Declaration and the Amended and Restated Trust Agreement has been duly authorized, executed and delivered by the Company. (v) The Guarantee Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Guarantee Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or ~~other laws~~ affecting creditors’ ' rights ~~generally from time~~ generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. (vi) The Common Stock initially issuable upon exercise of the Warrants have been duly reserved for issuance, and such shares, when issued in accordance with the Warrant Agreement, will be validly issued, fully paid and nonassessable. (vii) The Unit Agreement has been duly authorized by the Company and assuming due authorization, execution and delivery by the Initial Purchaser, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to ~~time~~ the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in ~~effect~~ a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. (viii) The Warrant Agreement has been duly authorized by the Company and assuming due authorization, execution and delivery by the Initial Purchaser, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. (ix) The Registration Rights Agreement has been duly authorized by the Company and assuming due authorization, execution and delivery by the Initial Purchaser, constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing and except ~~that any~~ with respect to the rights ~~to indemnity or~~ of indemnification and contribution ~~thereunder~~ thereunder, which enforcement thereof may be limited by federal ~~and~~ or state securities laws ~~and public policy considerations)~~or the policies underlying such laws. (ixx) The Remarketing Agreement has been duly authorized by the Company and assuming due authorization, execution and delivery by the ~~Company of~~Initial Purchaser, constitutes a valid and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material binding agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company ~~or any of~~ enforceable against the Company in accordance with its ~~significant subsidiaries~~terms, ~~or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable~~ subject to the ~~Company~~ effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or ~~its significant subsidiaries;~~ affecting creditors' rights generally, general equitable principles (xwhether considered in a proceeding in equity or at law) ~~the Company is not~~ and an ~~“investment company” and, after giving effect~~ implied covenant of good faith and fair dealing and except with respect to the ~~Offering~~ rights of indemnification and contribution thereunder, which enforcement thereof may be limited by federal or state securities laws or the ~~Notes and the application of the proceeds therefrom, will not be an “investment company”, as~~ policies underlying such ~~term is defined in the 1940 Act; and~~laws. (xi) To the best of such ~~counsel does not know of any~~ counsel's knowledge and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending or threatened to which the Company or any of its ~~subsidiaries~~ Significant Subsidiaries is a party or to of which ~~the~~ any property or asset of the Company or any of its ~~subsidiaries~~ Significant Subsidiaries is the subject that ~~would be~~ is required to be ~~described in a prospectus~~ disclosed pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.Item 103 of Regulation S-K; (xii) ~~commencing with~~ To the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method best of ~~operation, as represented by~~ such counsel's knowledge neither the Company, ~~will permit~~ any of its Significant Subsidiaries or Washington Mutual Bank, fsb is a party to any written agreement or memorandum of understanding with, or a party to any commitment letter or similar undertaking to, or is subject to any order or directive by, or is a recipient of any extraordinary supervisory letter from, or has adopted any board resolutions at the ~~Company~~ request of, any Bank Regulatory Authority which restricts materially the conduct of its business, or in any manner relates to ~~continue to so qualify~~its capital adequacy, its credit policies or its management, nor have any of them been advised by any Bank Regulatory Authority that it is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, extraordinary supervisory letter, commitment letter or similar submission, or any such board resolutions. (xiii) ~~No registration under~~ Assuming the ~~Act~~ accuracy of the ~~Notes~~ representations and warranties of the Initial Purchaser contained in Section 6 of the Purchase Agreement and its compliance with the agreements set forth therein, it is ~~required~~ not necessary, in connection with the issuance and sale of the ~~Notes~~ Units to the Initial ~~Purchasers~~ Purchaser or the reoffer, resale and delivery of the Units by the Initial Purchaser to the initial purchasers therefrom and the exercise of the Warrants for Exercise Shares, in each case, in the manner contemplated by the Purchase Agreement, the Unit Agreement, the Warrant Agreement, the Amended and Restated Trust Agreement and the Offering Memorandum, to register the Unit Securities or the Exercise Shares under the Securities Act or to qualify the Indenture or the Amended and Restated Trust Agreement under the Trust Indenture Act. (xiv) The statements contained in the Offering Memorandum under the captions "The Trust", "Description of the Units", "Description of the Warrants", "Description of the Common Stock", "Description of the Preferred Securities", "Description of the Debentures", "Description of the Guarantee", "Description of the Registration Rights Agreement" and "Relationship Among The Preferred Securities, The Debentures and The Guarantee" insofar as such statements purport to summarize certain provisions of the Operative Documents, this Agreement and the Common Stock, as the case may be, provide a fair summary of such provisions in all material respects. (xv) The statements contained in the Offering Memorandum under the caption "Certain United States Federal Income Tax Consequences" are accurate in all material respects and constitute a fair summary of the matters set forth therein; (xvi) This Agreement has been duly authorized, executed and delivered by the Company. (xvii) The execution, delivery and performance of this Agreement and the Operative Documents to which each Washington Mutual Entity is a party, and the consummation of the transactions contemplated hereby and thereby, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any Material Contract, nor will such actions result in any violation of the provisions of the charter or by-laws of the Company or any of its Significant Subsidiaries or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its Significant Subsidiaries or any of their properties or assets; and, except for the registration of the Unit Securities and the Exercise Shares under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the transaction contemplated by the Registration Rights Agreement, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Operative Documents to which the Company is a party or the consummation of the transactions contemplated herein and therein. For purposes of this opinion, Material Contracts mean those agreements filed as exhibits to Washington Mutual's reports filed pursuant to the Exchange Act. (xviii) To the best of such counsel's knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any Units of the Company owned or to be owned by such person or to require the Company to include such Units in the Units registered pursuant to the Registration Statements. (xix) Neither the Company nor the Trust is required to register as an investment company under the Investment Company Act as a result of the consummation of the transactions contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereofOperative Documents. In rendering ~~any~~ such opinion, such counsel may ~~rely, as~~ state that its opinion is limited to matters ~~of fact, to~~ governed by the ~~extent such counsel deems proper, on certificates of responsible officers~~ Federal laws of the ~~Company and public officials and~~United States of America, ~~as to matters involving~~ the ~~application of~~ laws of ~~any jurisdiction other than~~ the State of ~~New York or the United States or~~ Washington and the General Corporation Law of Delaware. Such counsel shall also have furnished to the ~~State of Delaware~~Initial Purchaser a written statement, addressed to the Initial Purchaser and dated such Delivery Date, in form and substance satisfactory to the Initial Purchaser, to the ~~extent satisfactory in form and scope to~~ effect that (x) it has acted as counsel ~~for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered~~ to the ~~Initial Purchasers~~ Company in connection with the preparation of the Offering Memorandum, and ~~counsel for~~ (y) based on the ~~Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References~~ foregoing, no facts have come to the ~~Final Memorandum~~ attention of such counsel which lead it to believe that the Offering Memorandum, as of its date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in ~~this subsection (a) shall include any amendment or supplement thereto prepared~~ order to make the statements therein not misleading, except that no view need be expressed as to the financial statements and other financial and statistical data included in ~~accordance with~~ the ~~provisions of this Agreement at the Closing Date~~Offering Memorandum. (bd) ~~The Initial Purchasers shall have received a legal opinion from~~ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ~~▇▇▇▇▇▇▇ LLP~~Finger, ~~counsel for~~ P.A. shall have furnished to the Initial ~~Purchasers~~Purchaser its written opinion, ~~dated~~ as special Delaware counsel to the ~~Closing Date~~Company and the Trust, ~~with respect~~ addressed to ~~certain legal matters relating to this Agreement and such other related matters as~~ the Initial ~~Purchasers may reasonably require. In rendering~~ Purchaser and dated such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to ~~counsel for~~ the Initial ~~Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board~~Purchaser, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers~~ to the effect that: (i) The Trust has been duly created and is validly existing in good standing as a business trust under the ~~representations~~ Delaware Business Trust Act and ~~warranties~~ all filings required under the Delaware Business Trust Act with respect to the creation and valid existence of the ~~Company~~ Trust as a business trust in ~~this Agreement are true and correct as if made on and as~~ the State of ~~the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and~~Delaware have been made. (ii) ~~subsequent to~~ Under the ~~respective dates as of which information is given in~~ Amended and Restated Trust Agreement and the ~~Final Memorandum (exclusive of any amendment or supplement thereto)~~Delaware Business Trust Act, ~~neither~~ all necessary trust action has been taken on the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations part of the ~~Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent~~ Trust to duly authorize the execution and delivery of this Agreement ~~and prior to~~ by the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the ActTrust. (fiii) The ~~Indenture shall have been executed~~ Preferred Securities are duly authorized by the Trust Agreement, and when authenticated, issued and delivered by ~~all~~ the ~~parties thereto~~Trust in accordance with the Trust Agreement, the Trust Preferred Securities will be duly and validly issued and fully paid and nonassessable interests in the Trust. (giv) On The holders of Preferred Securities, in their capacity as such, will be entitled to the ~~Closing Date,~~ same limitation of personal liability extended to stockholders of private corporations for profit organized under the ~~Initial Purchasers shall have received~~ General Corporation Law of the ~~Registration Rights Agreement executed by~~ State of Delaware. We note that such holders may be obligated to make payments as set forth in the ~~Company~~ Amended and ~~such agreement shall be in full force and effect at all times from and after the Closing Date~~Restated Trust Agreement. (hv) ~~On or before~~ Under the ~~Closing Date~~Amended and Restated Trust Agreement and the Business Trust Act, the ~~Initial Purchasers~~ Trust has all necessary trust power and ~~counsel for~~ authority to execute and deliver the ~~Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from~~ Purchase Agreement and the ~~Company. All opinions, certificates, letters and documents delivered pursuant~~ Operative Documents to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letterswhich it is a party, and ~~documents~~ to perform its obligations thereunder. (vi) Under the Amended and Restated Trust Agreement and the Business Trust Act, the issuance and sale by the Trust of the Preferred Securities and the execution and delivery by the Trust of the Purchase Agreement and the Operative Documents to which it is a party, and the performance by the Trust of its obligations thereunder, have been duly authorized by all necessary trust action on the part of the Trust. (vii) Under the Business Trust Act and the Amended and Restated Trust Agreement, the issuance by the Trust of the Preferred Securities is not subject to any preemptive purchase rights of any Person. (viii) No consent, approval, license, authorization, order, registration or qualification of or with any Delaware court or Delaware governmental agency or body is required solely in ~~such quantities as~~ connection with (i) the ~~Initial Purchasers shall reasonably request.~~issuance and sale by the Trust of the Preferred Secu

Appears in 1 contract

Sources: Purchase Agreement (Washington Mutual Capital Trust 2001)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇▇▇▇ ~~Chance US LLP~~▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Company, in form and substance satisfactory for counsel to the Initial Purchaser, dated the Closing Date, substantially to the effect that: (i) ~~such counsel~~ The Company has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly ~~organized and are~~ incorporated, is validly existing ~~as corporations~~ and is in good standing as a corporation under the laws of ~~their respective jurisdictions~~ the State of ~~incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ Delaware, with all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to ~~own, lease and operate their respective~~ own its properties and ~~assets and~~ conduct ~~their respective businesses~~ its business as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except . (ii) Except as ~~otherwise~~ set forth in the Final Memorandum, ~~are owned beneficially by the Company free and clear of any perfected security interests or,~~ to the ~~best~~ knowledge of such counsel, there are no outstanding (i) options, warrants or other rights to purchase from the Company, (ii) agreements or other obligations of the Company to issue or (iii) other rights to convert any obligation into, or exchange any securities for, shares of capital stock of, or other ~~security interests~~equity securities of, ~~liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;~~the Company. (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the ~~Registration Rights Agreement;~~ Notes. The Notes are in the ~~Registration Rights Agreement has~~ form contemplated by the Indenture. The Notes have been duly and validly authorized by the Company ~~and,~~ and when ~~duly~~ executed and delivered -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture (assuming due authorization, execution and delivery ~~thereof~~ of the Indenture by the Trustee) and paid for by the Initial ~~Purchasers~~Purchaser in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Company, will entitle the holders to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, indemnity and contribution or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), ~~will be~~ and except that such counsel need not express any opinion as to the enforceability of the waiver as to ▇▇▇▇▇, extension or stay laws. (iv) The Global Note (as such term is defined in the Indenture) is in the form contemplated by the Indenture. (v) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture meets the requirements for qualification under the TIA. The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a ~~legal,~~ valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms (~~subject~~assuming due authorization, execution and delivery thereof by the Trustee), except as ~~to enforcement of remedies~~the enforceability thereof may be limited by bankruptcy, ~~to applicable bankruptcy~~insolvency, reorganization, fraudulent conveyance, moratorium, indemnity and contribution or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and except that such counsel need not express any opinion as to the enforceability of the waiver as to ▇▇▇▇▇, extension or stay laws. (vi) The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes have been duly executed and delivered by the Company and authenticated by the Trustee in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming due authorization, execution and delivery of the Indenture by the Trustee), will constitute the valid and legally binding obligations of the Company, will entitle the holder to the benefits of the Indenture, and will be enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors’ ' rights generally ~~from time to time~~ and by general -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- equitable principles (regardless of whether the issue of enforceability is considered in ~~effect~~ a proceeding in equity or at law), and except that such counsel need not express any ~~rights~~ opinion as to ~~indemnity~~ the enforceability of the waiver as to usury extension or ~~contribution thereunder~~ stay laws. (vii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under each of the Registration Rights Agreement, Warrant Registration Rights Agreement, the Unit Agreement and the Warrant Agreement. Each of such agreements has been duly and validly authorized, executed and delivered by the Company and (assuming the due authorization, execution and delivery thereof by each of the other parties thereto) constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and subject to the limitations of federal and state securities laws and public policy ~~considerations~~considerations as to any rights to indemnity or contribution thereunder, and subject further to the fact that provisions for liquidated damages may be unenforceable if they were deemed to constitute a penalty. (viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under each of the Security Documents. Each of the Security Documents has been duly and validly authorized, executed and delivered by the Company and (assuming the due authorization, execution and delivery thereof by each of the other parties thereto) constitutes a valid and legally binding agreement of the Company enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), including without limitation, concepts of materiality, reasonableness, good faith and fair dealing. (ix) ~~the execution~~ The Units have been duly authorized, executed, issued and ~~delivery~~ delivered by the Company ofand constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- enforceability is considered in a proceeding in equity or at law). (x) The Warrants have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law). (xi) The Warrant Shares have been duly and validly authorized and validly reserved for issuance, and when issued and paid for upon exercise of the Warrants in accordance with the terms thereof, will be validly issued, fully paid, nonassessable, free of preemptive rights as a matter of the United States federal laws, the Delaware General Corporation Law or the New York Business Corporation Law, and to such counsel's knowledge, free of all other preemptive rights. (xii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly authorized by all necessary corporate action, and has been duly executed and delivered by the Company. (xiii) No consent, approval, authorization or order of any United States federal, New York state or Delaware state court or govern- mental agency or body is required under applicable law or, to the knowledge of such counsel under any United States federal, New York state or Delaware state court decree, order or regulatory decision for the execution, delivery or performance by the Company of ~~its obligations under,~~ this Agreement, the Registration Rights Agreement, the ~~Indenture~~ Warrant Registration Rights Agreement, the Unit Agreement, the Warrant Agreement, the Indenture, the Securities and the ~~Notes,~~ Security Documents or the ~~Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers~~ consummation by the Company ~~pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation~~ of the ~~other~~ transactions ~~herein~~ contemplated ~~do not (x) require~~ hereby or thereby that are to be completed prior or on the ~~consent, approval, authorization, registration or qualification of or with any governmental authority~~date hereof, except such as have been obtained or ~~made (~~disclosed in the Final Memorandum and ~~specified in such opinion) or~~ such as may be required ~~by the~~ under state securities or "Blue ~~Sky~~ Sky" laws as to which such counsel need not express any opinion. The Company is not (i) in violation of ~~the various states~~ its certificate of ~~the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act~~ incorporation or ~~the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement,~~ bylaws (or similar organizational document) or (yii) ~~conflict with or result~~ in a breach or violation of any ~~of the terms and provisions of~~statute, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation (of which such counsel is aware) applicable to any ~~court or other governmental authority~~ of them or any ~~arbitrator~~ of their respective properties or assets, except such violations or breaches that would not, individually or in the aggregate, have a Material Adverse Effect. -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- (xiv) The execution, delivery and performance by the Company of this Agreement, the Indenture, the Registration Rights Agreement, Warrant Registration Rights Agreement, the Unit Agreement, the Warrant Agreement, the Security Documents, and the consummation by the Company of the transactions contemplated hereby and thereby, and the fulfillment of the terms hereof and thereof, will not conflict with or constitute or result in a breach of or a default under (or an event which with notice or passage of time or both would constitute a default under) any material contract known to ~~such counsel and applicable~~ us to ~~the Company or its significant subsidiaries; (x)~~ which the Company is ~~not an “investment company” and, after giving effect~~ a party or to ~~the Offering~~ which any of its assets is subject or a violation of any of the ~~Notes and the application~~ certificate of incorporation or by-laws (or similar organizational document) of the ~~proceeds therefrom~~Company, ~~will not be an “investment company”~~or (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of representations and warranties of the Initial Purchaser in Section 8 of the Purchase Agreement) violate any statute, ~~as such term is defined in the 1940 Act; and~~ judgment, decree, order, rule or regulation (~~xi)~~ of which such counsel ~~does not know of any legal or governmental proceedings pending or threatened~~ is aware) applicable to ~~which~~ the Company or any of its ~~subsidiaries~~ properties or assets except for any such conflicts, breaches, defaults or violations that would not, individually or in the aggregate, have a Material Adverse Effect. (xv) To the knowledge of such counsel, there is not pending or threatened, any action, suit, proceeding, inquiry, investigation or legislative mandate to which the Company is a party or to which the property or assets of the Company is subject, before or brought by any ~~of its subsidiaries is subject that~~ court, arbitrator or governmental agency or body which are reasonably likely to, individually or in the aggregate, have a Material Adverse Effect and would otherwise be required to be described in a prospectus ~~pursuant~~ that is subject to Item 103 of Regulation S-K under the Securities Act ~~that are~~ or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder. (xvi) Neither the consummation of the transactions contemplated by this Purchase Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. (xvii) The Company is not nor immediately after the sale of the Securities to be sold hereunder and the application of the proceeds from such sale (as described in the Final Memorandum ~~or any statutes~~under the caption "Use of Proceeds") will it be an "investment company" as such term is defined in the Investment Company Act of 1940, ~~regulations~~as amended, ~~contracts or other documents that would be required to be described in a prospectus pursuant to~~ and the ~~Act that are not described or incorporated~~ rules and regulations thereunder. (xviii) The Notes satisfy the eligibility requirements of Rule 144A(d)(3) under the Act. -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- (xix) The statements in the Final ~~Memorandum.~~Memorandum under the caption "Description of Capital Stock", "Description of Units," "Description of Notes", "Description of Warrants" and "Exchange Offer and Registration Rights," and the description in the Final Memorandum of the Company's agreement with Southland Corporation, insofar as they describe the provisions of the documents and instruments therein described, constitute fair summaries thereof in all material respects; (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiiixx) No registration under the Act of the ~~Notes~~ Securities is required in connection with the sale of the ~~Notes~~ Securities to the Initial ~~Purchasers~~ Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the ~~Notes~~ Securities by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 of this ~~Agreement,~~ Agreement and otherwise in the manner contemplated by this Agreement and the Final Memorandum; and prior to the commencement of the Exchange Offer ~~(as defined in the Registration Rights Agreement)~~ or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) ~~(A)~~ that the purchasers who buy such ~~Notes~~ Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or accredited investors as defined in Rule 501(a) (1), (2), (3) or (B7) ~~that~~ promulgated under the ~~offer or sale of the Notes is made in an offshore transaction as defined in Regulation S~~Act ("Accredited Investors"), (ii) the accuracy of the Initial ~~Purchasers’~~ Purchaser's representations in Section 8 hereof and those of the Company contained in this Agreement regarding the absence of a general solicitation or general advertising in connection with the sale of such ~~Notes~~ Securities to the Initial ~~Purchasers~~ Purchaser and the initial resale thereof and (iii) the due performance by the Initial ~~Purchasers~~ Purchaser of the agreements set forth in Section 8 hereof~~. In rendering any such opinion, such counsel may rely, as to matters~~ . (xxi) The provisions of ~~fact,~~ the Security Agreement create in favor of the Collateral Agent a valid security interest in and to the ~~extent such counsel deems proper, on certificates of responsible officers~~ Collateral to which Article 9 of the ~~Company and public officials and,~~ Uniform Commercial Code as ~~to matters involving the application of laws of any jurisdiction other than~~ in effect in the State of New York or ("UCC") on the ~~United States or~~ date hereof is applicable (the ~~General Corporation Law~~ "Article 9 Collateral"). When financing statements on Form UCC-1 have been duly filed in the jurisdictions set forth on schedule 2 attached to such opinion, such filings will result in the perfection of the security interests in that portion of the Article 9 Collateral in which security interests are perfected under the UCC in the jurisdictions set forth on schedule 2 attached hereto by the filing of financing statements. (xxii) The provisions of the Pledge Agreement, together with delivery in the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman New York of the ~~Board~~certificates representing the Pledged Securities, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties~~ would create in favor of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Collateral Agent valid securi

Appears in 1 contract

Sources: Purchase Agreement (Mentus Media Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its ~~covenants and agreements hereunder~~ obligations hereunder, and to each of the following additional terms and conditions: (a) On No Initial Purchaser shall have discovered and disclosed to the ~~Closing Date~~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, in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, is material or omits to state any fact which is material and necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (b) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial ~~Purchasers~~ Purchasers, and the Company shall have ~~received a legal opinion from~~ furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters; (c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~Chance US LLP~~shall have furnished to the Initial Purchasers its written opinion, as counsel ~~for~~ to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance reasonably satisfactory to the ~~Closing Date~~Initial Purchasers, to the effect that: (i) The Company and each of the Delaware Guarantors have been duly organized and are validly existing as corporations in good standing under the laws of Delaware, and have all corporate power and authority necessary to conduct their respective businesses as described in the Offering Memorandum; (ii) All of the outstanding shares of Common Stock of the Company have been duly authorized, validly issued, fully paid and non-assessable; and all of the issued shares of capital stock of each Delaware Guarantor of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except for directors' qualifying shares) and, based solely on an examination of each such subsidiary's stock ledger and minute book, all such shares are held of record by the Company and/or a subsidiary of the Company; (iii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming the Indenture is a valid and legally binding obligation of the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (iv) The CODES have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the terms of the Purchase Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; and the CODES, when issued and delivered, will conform to the description thereof contained in the Offering Memorandum; (v) The Conversion Shares that are authorized on the date hereof have been duly authorized and validly reserved for issuance upon conversion of the CODES; and the Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable; (vi) The Guarantees have been duly authorized, executed and issued by the Delaware Guarantors and, assuming due authentication of the CODES by the Trustee, upon payment and delivery in accordance with the terms of the Purchase Agreement will constitute valid and legally binding obligations of each of the Delaware Guarantors enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (vii) Assuming that the Guarantees have been duly authorized and issued by each of the Non-Delaware Guarantors and, assuming due authentication of the CODES by the Trustee, upon payment and delivery of the CODES in accordance with the terms of the Purchase Agreement, the Guarantees will constitute valid and legally binding obligations of the Non-Delaware Guarantors enforceable against the Non-Delaware Guarantors. (viii) The statements contained in the Offering Memorandum under the captions "Risk Factors-The CODES are subordinated to all our existing and future senior indebtedness, which may inhibit our ability to repay you," "Risk Factors-The terms of our senior indebtedness could restrict our flexibility and limit our ability to satisfy obligations under the CODES," "Risk Factors--Future sales of common stock of L-3 Holdings in the public market could lower the stock price," "Risk Factors--Delaware Law and the charter documents of L-3 Holdings may impede or discourage a takeover, which could cause the market price of its shares to decline," "Description of Other Indebtedness," and "Description of the CODES," insofar as they describe charter documents, contracts, statutes, rules and regulations and other legal matters, constitute an accurate summary thereof in all material respects; (ix) The statements contained in the Offering Memorandum under the caption "Certain United States Federal Income Tax Considerations," insofar as they purport to constitute summaries of matters of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects; (x) This Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors; and (xi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors and, assuming that the Registration Rights Agreement is the valid and legally binding obligation of the Initial Purchasers and Non-Delaware Guarantors, constitutes a valid and legally binding obligation of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms. (xii) The issue and sale of the CODES and Guarantees being delivered on such Delivery Date by the Company and the Guarantors and the compliance by the Company and the Guarantors, as applicable, with all of the provisions of this Agreement and the Indenture will not breach or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed as an exhibit to a document incorporated by reference in the Offering Memorandum ("Exchange Act Documents") nor will such actions violate the Certificate of Incorporation or By-Laws or other organizational documents of the Company or the Delaware Guarantors, or any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law by any court or governmental agency or body or court having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets; and no consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law or, to such counsel's knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law is required for the issue and sale of the CODES by the Company (and the guarantees of such CODES by the Guarantors), except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the CODES and Guarantees by the Initial Purchasers. The opinions set forth in this paragraph are based upon our consideration of only those statutes, rules and regulations which, in such counsel's experience, are normally applicable to securities underwriting transactions. (xiii) No registration of the CODES under the Securities Act and no qualification of the Indenture under the Trust Indenture Act is required for the offer and sale of the CODES by the Company to the Initial Purchasers or the reoffer and resale of the CODES by the Initial Purchasers to the initial purchasers therefrom solely in the manner contemplated by the Offering Memorandum, the Purchase Agreement and the Indenture. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States and the laws of the State of New York, the Delaware General Corporation Law and the Delaware Limited Liability Company Act. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date stating: Such counsel has not independently verified the accuracy, completeness or fairness of the statements made or included in the Offering Memorandum and take no responsibility therefor, except as and to the extent set forth in paragraphs (viii) and (ix) above. In the course of the preparation by the Company of the Offering Memorandum (excluding the Exchange Act Documents), such counsel participated in conferences with certain officers and employees of the Company, with representatives of PricewaterhouseCoopers, LLP and with counsel to the Company. Based upon such counsel's examination of the Offering Memorandum (including the Exchange Act Documents), such counsel's investigations made in connection with the preparation of the Offering Memorandum (excluding the Exchange Act Documents) and such counsel's participation in the conferences referred to above, such counsel has no reason to believe that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final~~ Offering Memorandum, ~~as of its date or~~ including the ~~date of such opinion, included or includes~~ Exchange Act Documents contains any untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~. (ii) the Company and~~ , except that in each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where case such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for need not express belief with respect to ~~such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to~~ the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium financial statements or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act financial data contained in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or ~~any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or~~ incorporated ~~in the Final Memorandum~~therein by reference. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (L 3 Communications Holdings Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase the Units hereunder are subject to the satisfaction of each of the following conditions: (a) At the time of execution of this Agreement and ~~pay~~ on the Closing Date, and the Option Closing Date, as to the Additional Units, if any, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Securities Act shall have been issued and no proceedings for ~~the Notes shall,~~ that purpose shall have been commenced or shall be ~~subject, in the Initial Purchasers’ sole discretion~~pending or, to the ~~accuracy~~ knowledge of the Company, be contemplated. No stop order suspending the sale of the Securities in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated. (b) There shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt of the Company from that set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto subsequent to the date of the Offering Memorandum); (ii) the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Offering Memorandum (exclusive of any amendment or supplement thereto subsequent to the date of the Offering Memorandum); and (iii) all the representations and warranties of the Company contained ~~herein~~ in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of ~~each~~ the Closing Date or the Option Closing Date, as the case may be, as if made on and as of ~~each~~ the Closing Date or the Option Closing Date, to as the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~case may be, ~~to the performance by the Company of its covenants~~ and ~~agreements hereunder and to the following additional conditions: (a) On the Closing Date,~~ the Initial Purchasers shall have received a ~~legal~~ certificate, dated the Closing Date or the Option Closing Date, as the case may be, and signed by the chief executive officer and the chief accounting officer of the Company (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(b) and in Sections 7(a), 7(c) and 7(c) hereof. (c) The Company shall not have failed at or prior to the Closing Date or the Option Closing Date, as the case may be, to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date or the Option Closing Date, as the case may be. (d) Subsequent to the date as of which information is given in the Offering Memorandum, except as otherwise stated in the Offering Memorandum (exclusive of any amendment or supplement thereto subsequent to the date of the Agreement) there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, results of operations or prospects of the Company or the Subsidiaries not contemplated by the Offering Memorandum (exclusive of any amendment or supplement thereto subsequent to the date of the Agreement) which in the opinion ~~from ▇~~of the Initial Purchasers, would adversely affect the market for the Securities or (ii) any event or development relating to or involving the Company, or any officer or director of the Company which makes any statement made in the Offering Memorandum (exclusive of any amendment or supplement thereto subsequent to the date of the Agreement) untrue or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, adversely affect the market for any of the Securities. (e) The Offering Memorandum shall have been printed and copies thereof distributed to the Initial Purchasers in such quantities as shall have been previously specified by them not later than 9:00 a.m. New York City time, on January 14, 1998, or at such later date and time as the Initial Purchasers may approve in writing. (f) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, an opinion of ▇▇▇▇▇▇▇ ~~Chance US~~ & ▇▇▇▇ LLP, counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Initial Purchasers and ▇▇▇▇▇▇▇ ▇▇▇▇▇, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been~~ USA is a corporation duly ~~organized~~ incorporated and ~~are~~ validly existing ~~as corporations~~ in good standing under the laws of ~~their respective jurisdictions~~ the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have Delaware with full corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the ~~Final~~ Offering Memorandum~~, and~~ ; (ii) All the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of ~~each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum~~USA have been duly authorized and validly issued, are fully paid and nonassessable, and are wholly owned ~~beneficially~~ by the Company directly, free and clear of any ~~perfected~~ security ~~interests or~~interest, ~~to the best knowledge of such counsel~~lien, ~~any~~ adverse claim, equity or other ~~security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments~~encumbrance; (iii) All the ~~statements set forth under~~ shares of capital stock of the ~~heading “Description~~ Company outstanding prior to the issuance of ~~Notes”~~ the Securities have been duly authorized and validly issued and are fully paid and nonassessable and not subject to any preemptive rights except as described in the ~~Final~~ Offering Memorandum, ~~insofar as~~ such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required opinion to be ~~disclosed~~ given in ~~a prospectus pursuant to~~ reliance upon the ~~Act and the Exchange Act and the respective rules and regulations thereunder~~Certificate; (iv) The Company has full corporate power and authority to execute, deliver and perform its obligations under the ~~execution~~ Operative Documents and ~~delivery of~~ to consummate the transactions contemplated by the Operative Documents and to issue, sell and deliver the Units pursuant to this ~~Agreement have been duly authorized by all necessary corporate action of the Company and the~~ Agreement; (v) This Agreement has been duly authorized and validly executed and delivered by the Company; (vvi) ~~the execution and delivery of the~~ The Indenture ~~have~~ has been duly authorized ~~by the Company and, when duly~~ and validly executed and delivered by the Company ~~(assuming the due authorization, execution~~ and ~~delivery thereof by the Trustee), the Indenture will be~~ is a ~~legal,~~ valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Indenture by the Trustee), subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to ~~enforcement of remedies~~enforceability, to ~~applicable bankruptcy, reorganization, insolvency, moratorium~~ general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or ~~other laws affecting creditors’ rights generally from time~~ at law); no qualification of the Indenture under the TIA is required in connection with the offer and sale of the Series A Notes contemplated hereby or in connection with the Exempt Resales; the Indenture complies as to ~~time~~ form in ~~effect). The Indenture meets~~ all material respects with the requirements ~~for qualification under~~ of the TIA, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder. (vivii) The Units have been duly and validly authorized by the Company; the Series A Notes have been duly authorized by ~~all necessary corporate action of~~ the Company and, on when executed and as authenticated in accordance with the terms of the ~~Closing Date~~Indenture and, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, the Series A Notes will ~~have been duly executed~~ be entitled to the benefits of the Indenture and ~~delivered by the Company and, assuming due authentication by the Trustee,~~ will be ~~the legal,~~ valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the ~~Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture~~Trustee), ~~will be the legal~~subject to applicable bankruptcy, ~~valid~~ insolvency, fraudulent conveyance, reorganization, moratorium and ~~binding obligations of the Company, enforceable in accordance with their terms (~~similar laws affecting creditors' rights generally and subject, as to ~~enforcement of remedies~~enforceability, to ~~applicable bankruptcy, reorganization, insolvency, moratorium~~ general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or ~~other laws affecting creditors’ rights generally from time to time in effect~~at law).; (viii) The Series B Notes have been duly authorized by the ~~Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the~~ Company; (ix) The Notes Registration Rights Agreement has been duly authorized ~~by the Company and, when duly~~ and validly executed and delivered by the Company ~~(assuming due authorization, execution~~ and ~~delivery thereof by the Initial Purchasers), will be~~ is a ~~legal,~~ valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Notes Registration Rights Agreement by the Initial Purchasers), subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to ~~enforcement of remedies~~enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). general principles of equity (~~ix) the execution and delivery by the Company of, and the performance by the Company~~ regardless of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result whether enforcement is sought in a ~~breach~~ proceeding in equity or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiariesat law); (x) The Escrow Agreement has been duly authorized and validly executed and delivered by the Company and is ~~not an “investment company” and, after giving effect to the Offering~~ a valid and binding agreement of the ~~Notes~~ Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and ~~the application~~ delivery of the ~~proceeds therefrom~~Escrow Agreement by the Escrow Agent and any other party thereto other than the Company), ~~will not be an “investment company”~~subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws affecting creditors' rights generally and subject, as ~~such term~~ to enforceability, to general equitable principles of equity (regardless of whether enforcement is ~~defined~~ sought in ~~the 1940 Act; and~~a proceeding in equity or at law); (xi) ~~such counsel does not know of any legal or governmental proceedings pending or threatened to which~~ The Pledge Agreement has been duly authorized and validly executed and delivered by the Company ~~or any of its subsidiaries~~ and is a ~~party or to which the property~~ valid and binding agreement of the Company, enforceable against the Company ~~or any~~ in accordance with its terms (assuming the due authorization, execution and delivery of ~~its subsidiaries~~ the Pledge Agreement by the Collateral Agent), subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is ~~subject that would be required to be described~~ sought in a ~~prospectus pursuant to the Act that are not described~~ proceeding in ~~the Final Memorandum~~ equity or ~~any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.~~at law); (xii) ~~commencing with the Company’s taxable year ended December 31, 1998,~~ The Warrant Agreement has been duly authorized and validly executed and delivered by the Company ~~was organized~~ and ~~has operated in conformity with the requirements for qualification as~~ is a ~~real estate investment trust (“REIT”) under the Code,~~ valid and ~~the Company’s present and proposed method~~ binding agreement of ~~operation, as represented by~~ the Company, ~~will permit~~ enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Warrant Agreement by the Warrant Agent), subject to ~~continue~~ applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to ~~so qualify.~~enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); (xiii) ~~No registration under~~ The Warrants have been duly authorized by the ~~Act~~ Company and, when executed and countersigned in accordance with the terms of the ~~Notes is required in connection with the sale of the Notes~~ Warrant Agreement and upon (A) delivery to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy against payment therefor of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared Warrants in accordance with the ~~provisions~~ terms hereof, (B) delivery to the applicable purchasers against payment therefor of ~~this~~ the Additional Warrants, if any, in accordance with the terms hereof, delivery to the Holders of the Initial Series A Notes of the Contingent Warrants in accordance with the terms of the Warrant Agreement, the Warrants will be entitled to the benefits of the Warrant Agreement and will be valid and binding obligations of the Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Warrant Agreement by the Warrant Agent) subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at ~~the Closing Date.~~law); (bxiv) The ~~Initial Purchasers shall~~ Warrant Shares to be issued upon the exercise of the Warrants have ~~received~~ been duly authorized and reserved for issuance by the Company and, when issued and delivered against payment of the exercise price as provided in the Warrant Agreement, the Warrant Shares will have been validly issued and will be fully paid and nonassessable and the issuance of the Warrant Shares will not be subject to any preemptive rights; (xv) The Registration Agreement has been duly authorized and validly executed and delivered by the Company and is a ~~legal opinion from~~ valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Registration Agreement by ▇▇▇▇▇▇▇ ▇▇▇▇▇~~▇ & ▇▇▇▇▇▇▇ LLP~~, ~~counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as~~ the Initial Purchasers ~~may reasonably require. In rendering such opinion~~and the investors listed thereto), subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law); (xvi) The Convertible Note Purchase Agreement has been duly authorized and validly executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (assuming the due authorization, execution and delivery of the Convertible Note Purchase Agreement by ▇▇▇▇▇▇▇ ▇▇▇▇▇~~▇ &~~ ), subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles regardless of whether such principles are enforceable at law or equity. (xvii) The Convertible Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the terms of the Convertible Note Purchase Agreement and, upon delivery to ▇▇▇▇▇▇▇ ~~LLP shall have received~~ ▇▇▇▇▇ of the Convertible Notes against payment therefor in accordance with the terms of the Convertible Note Purchase Agreement, the Convertible Notes will be entitled to the benefits of the Convertible Note Purchase Agreement and will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (assuming the due authorization, execution and delivery of the Convertible Note Purchase Agreement by ▇▇▇▇▇▇▇ ▇▇▇▇▇), subject to the qualification that the enforceability of the Company's obligations thereunder may ~~rely upon such certificates~~ be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other ~~documents~~ laws relating to or affecting creditors' rights generally and ~~information as it may reasonably request to pass upon~~ by general equitable principles regardless of whether such ~~matters~~principles are enforceable at law or equity. (cxviii) ~~The Initial Purchasers shall have received from PricewaterhouseCoopers LLP~~ None of (A) the issuance, offer, sale or delivery of the Units, (B) the execution, delivery or performance of this Agreement or the other Operative Documents, or (C) the consummation by the Company of the transactions contemplated hereby or thereby, (1) requires any consent, approval, authorization or other order of, or registration or filing with, any United States federal, state or local court, regulatory body, administrative agency or other governmental body, agency or official (except such as may be required in connection under the securities or Blue Sky laws of various jurisdictions and except as may be required under the Communications Act of 1934, as amended by the Telecommunications Act of 1996 or the rules, regulations and written policies of the FCC ("U.S. Telecommunications Law") as to which no opinion is --------------------------- given), (2) conflicts with or constitutes a ~~letter~~ breach of, or ~~letters dated, respectively~~a default under, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of ~~its Chairman of the Board, its President~~ incorporation or ~~its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties~~ by-laws of the Company ~~in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed~~ or ~~satisfied at~~ USA, (3) conflicts with or ~~prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of~~ constitutes a breach of, or a default under, any ~~amendment or supplement thereto)~~agreement, ~~neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire~~indenture, ~~flood, hurricane, accident~~ lease or other ~~calamity~~instrument, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of to which the Company or any of ~~its subsidiaries~~the Subsidiaries is a party or by which any of them or any of their respective properties may be bound, which is identified as material to the Company and the Subsidiaries, taken as a whole, ~~except~~ as set forth in ~~each case~~ an Officers' Certificate attached as ~~described in or contemplated by~~ an exhibit to such opinion (the ~~Final Memorandum (exclusive of any amendment or supplement thereto~~"Exhibit")~~. (e) Subsequent to the execution~~ , and ~~delivery of this Agreement and~~ which has not been waived prior to ------- the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies date of such ~~opinions~~opinion, ~~certificates, letters, and documents in~~ (4) violates the Delaware General Corporation Law or any U.S. federal (other than U.S. Telecommunications Law of which such ~~quantities as the Initial Purchasers shall reasonably request.~~counsel need not express an opinion) or Colorado st

Appears in 1 contract

Sources: Purchase Agreement (Centennial Communications Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase Securities on the Closing Date and ~~pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained~~ each Option Closing Date as provided herein ~~as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof,~~ is subject to the performance by the Company (and the Parent, solely for purposes of Section 5(k) hereof) of its covenants and ~~agreements~~ other obligations hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements The representations and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action warranties of the Company contained herein shall be true and correct on the ~~Agreement has been duly executed~~ date hereof and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date and each Option Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers statements of the Company and ~~public officials and,~~ its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as ~~to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law~~ of the ~~State of Delaware, to the extent satisfactory in form~~ Closing Date and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the each Option Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, ~~there~~ (i) no downgrading shall ~~not~~ have occurred ~~any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change,~~ in the rating ~~accorded~~ assigned to the Securities or any other debt securities or preferred stock issued or guaranteed by the Company or any of ~~the Company’s securities~~ its Subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or any of its Subsidiaries (other than an announcement with positive implications of a possible upgrading). (c) Subsequent to the execution and delivery of this Agreement, no event or condition of a type described in Section 1(e) hereof shall have occurred or shall exist, which event or condition is not described in the each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Offering Memorandum (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Initial Purchasers makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum. (d) The Initial Purchasers shall have received on and as of the Closing Date and each Option Closing Date a certificate of an executive officer of the Company who has specific knowledge of the Company’s financial matters and is satisfactory to the Initial Purchasers (i) confirming that such officer has carefully reviewed the Time of Sale Information and the Offering Memorandum and, to the best knowledge of such officer, the representations and warranties of the Company in this Agreement are true and correct, (ii) and confirming that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date and each Option Closing Date and (iii) confirming no event having the effect set forth in paragraphs (b) and (c) above shall have occurred. (e) On the date of this Agreement and on the Closing Date and each Option Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Initial Purchasers, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Time of Sale Information and the Offering Memorandum; provided that the letter delivered on the Closing Date and each Option Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date or such Option Closing Date, as the case may be. (f) ▇▇▇▇▇▇▇ Procter LLP, counsel for the Company, shall have furnished to the Initial Purchasers, at the request of the Company, their written opinion, dated the Closing Date and each Option Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Annex C hereto. (g) ▇▇▇▇▇ ▇▇▇▇, Esq., General Counsel for the Company, shall have furnished to the Initial Purchasers, at the request of the Company, his written opinion, dated the Closing Date and each Option Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Annex D hereto. (h) The ~~Indenture~~ Initial Purchasers shall have received on and as of the Closing Date and each Option Closing Date opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to such matters as the Initial Purchasers may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters. (i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date and each Option Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date and each Option Closing Date, prevent the issuance or sale of the Securities. (j) The Initial Purchasers shall have received on and as of the Closing Date and each Option Closing Date satisfactory evidence of the good standing of the Company and each of the Subsidiaries, in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Initial Purchasers may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions. (k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by ~~all~~ a duly authorized officer of the ~~parties thereto~~Company and the Parent. (gl) On The Securities shall have been approved by the ~~Closing Date~~NASD for trading in the PORTAL Market and shall be eligible for clearance and settlement through DTC. (m) The “lock-up” agreements, dated the date hereof, each substantially in the form of Exhibit B hereto, of the top five executive officers and the inside directors of the Company who are identified on Exhibit B-1 relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall have been delivered to the Initial Purchasers ~~shall have received~~ on or before the ~~Registration Rights Agreement executed by the Company~~ Closing Date and ~~such agreement~~ shall be in full force and effect ~~at all times from and after~~ on the Closing ~~Date.~~Date and each Option Closing date; (hn) On or ~~before~~ prior to the Closing Date and each Option Closing Date, the ~~Initial Purchasers and counsel for~~ Company shall have furnished to the Initial Purchasers ~~shall have received~~ such further ~~certificates~~certificates and documents as the Initial Purchasers may reasonably require for the purpose of consummating the transactions contemplated hereby. (o) During the period beginning on the date hereof and continuing to and including the Closing Date and each Option Closing Date, ~~documents~~ not to offer, sell or otherwise dispose of any debt securities of the Company or warrants to purchase or otherwise acquire debt securities of the Company substantially similar to the securities (other ~~information as they may have reasonably requested from~~ than (i) the ~~Company~~Securities, (ii) commercial paper issued in the ordinary course of business or (iii) securities or warrants permitted with the prior written consent of the Initial Purchasers). All opinions, ~~certificates~~letters, ~~letters~~ certificates and ~~documents delivered pursuant to~~ evidence mentioned above or elsewhere in this Agreement ~~will comply~~ shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory ~~in all material respects~~ to ~~the Initial Purchasers and~~ counsel for the Initial Purchasers~~. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request~~.

Appears in 1 contract

Sources: Purchase Agreement (Boston Properties LTD Partnership)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers to purchase ~~and pay for~~ the Series A Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder ~~and~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company or any of the Guarantors, be contemplated. No stop order suspending the sale of the Series A Notes in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company or any of the Guarantors, shall be contemplated. (b) Subsequent to the date as of which information is given in the Offering Memorandum, except as otherwise stated in the Offering Memorandum, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Series A Notes, or (ii) any event or development relating to or involving the Company , any of its Subsidiaries or any officer or director of the Company or any of its Subsidiaries which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company, the Guarantors and their counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Series A Notes. (c) The Final Offering Memorandum shall have been printed and copies thereof distributed to the Initial Purchasers in such quantities as shall have been previously specified by them not later than 9:00 a.m., New York City time, on Febraury 3, 1997, or at such later date and time as the Initial Purchasers may approve in writing. (d) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from~~ of Jenkens & ▇▇▇▇▇▇▇~~▇ Chance US LLP~~▇▇, P.C., counsel for the Company, dated the Closing ~~Date~~Date and addressed to the Initial Purchasers, to the effect that: (i) The Company is a corporation duly incorporated and validly existing in good standing under the laws of Texas with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum; (ii) Each of the Subsidiaries is a corporation duly incorporated and validly existing and in good standing under the laws of its jurisdiction of incorporation, with all requisite power and authority to own, lease, and operate its properties and to conduct its business as described in the Offering Memorandum; and all the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and to the knowledge of such ~~counsel~~ counsel, are wholly owned by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any security interest, lien, adverse claim, equity or other encumbrance, except as specifically described in the Offering Memorandum under the caption "Description Of Other Debt;" (iii) The authorized capital stock of the Company is as set forth under the caption "Capitalization" in the Offering Memorandum; (iv) The Company and each of the Guarantors have the corporate power and authority to enter into this Agreement and the Registration Rights Agreement and to issue, sell and deliver the Series A Notes to be sold to the Initial Purchasers as provided herein, and this Agreement and the Registration Rights Agreement have been duly and validly authorized, executed and delivered by the Company and the Guarantors and constitute the valid and binding agreements of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with their terms, except (A) as enforcement of rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy and (B) subject to the qualification that the enforceability of the Company's and the Guarantors' obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; (v) The Indenture has been duly and validly authorized, executed and delivered by the Company and the Guarantors and, assuming due authorization, execution and delivery by the Trustee, constitutes the valid and binding agreement of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms, subject to the qualification that the enforceability of the Company's and the Guarantors' obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; no ~~reason~~ qualification of the Indenture under the 1939 Act is required in connection with the offer and sale of the Series A Notes contemplated hereby or in connection with the Exempt Resales; (vi) The Series A Notes have been duly and validly authorized by the Company and when duly executed by the Company in accordance with the terms of the Indenture and, assuming due authentication of the Series A Notes by the Trustee, upon delivery to ~~believe~~ the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; (vii) The Series B Notes have been duly and validly authorized by the Company and if and when duly issued and authenticated in accordance with the terms of the Indenture and delivered in accordance with the Exchange Offer provided for in the Registration Rights Agreement, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles. (viii) The Series A Subsidiary Guarantees have been duly and validly authorized by the Guarantors and when duly executed and delivered by the Guarantors in accordance with the terms of the Indenture and upon the due execution, authentication and delivery of the Series A Notes in accordance with the Indenture and the issuance of the Series A Notes in the sale to the Initial Purchasers contemplated by this Agreement, will constitute valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, subject to the qualification that the enforceability of the Guarantors' obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; (ix) The Series B Subsidiary Guarantees have been duly and validly authorized by the Guarantors and if and when duly executed and delivered by the Guarantors in accordance with the terms of the Indenture and upon the due execution, authentication and delivery of the Series B Notes in accordance with the Indenture and the issuance and delivery of the Series B Notes in the Exchange Offer contemplated by the Registration Rights Agreement, will constitute valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, subject to the qualification that the enforceability of the Guarantors' obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; (x) None of the issuance, offer or sale of the Series A Notes and Series A Subsidiary Guarantees, the execution, delivery or performance by the Company and the Guarantors of this Agreement or the other Operative Documents, compliance by the Company and the Guarantors with the provisions hereof or thereof nor consummation by the Company and the Guarantors of the transactions contemplated hereby or thereby conflicts or will conflict with or constitutes or will constitute a breach of, or a default under the certificate or articles of incorporation or bylaws or other organizational documents of the Company or any of the Subsidiaries or the Credit Agreement, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Subsidiaries pursuant to the terms of the Credit Agreement nor will any such action result in any violation of any existing law, or any regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws and, in the case of the Registration Rights Agreement, the Act, the Exchange Act and the 1939 Act), judgment, injunction, order or decree known to such counsel, applicable to the Company or the Subsidiaries or any of their respective properties; (xi) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company or the Guarantors for the valid issuance and sale of the Series A Notes to the Initial Purchasers and the issuance of the Series A Subsidiary Guarantees in connection therewith as contemplated by this Agreement (other than ~~the financial statements~~ as may be required by applicable state securities and ~~other financial information contained therein~~Blue Sky laws, as to which ~~such~~ counsel need express no ~~opinion~~opinions); (xii) To the knowledge of such counsel, (A) other than as described or contemplated in the Offering Memorandum, there are no legal or governmental proceedings pending or threatened against the Company, the Guarantors or any of the other Subsidiaries or to which the Company or any of the Subsidiaries or any of their properties, are subject, which are not disclosed in the Offering Memorandum and which, if adversely decided, are reasonably likely to cause a Material Adverse Effect or materially affect the issuance of the Notes or the consummation of the other transactions contemplated by the Operative Documents and (B) there are no material agreements, contracts, indentures, leases or other instruments, that are not described in the Offering Memorandum; (xiii) The statements under the captions "Risk Factors," "Management's Discussion and Analysis of Financial Condition and Results of Operations," "Business," "Description of Other Debt," and "Certain Federal Income Tax Consequences" in the Offering Memorandum, insofar as they are descriptions of contracts, agreements or other legal documents, (excluding contracts, agreements or other legal documents pertaining to Company-sponsored securitizations) or refer to statements of law or legal conclusions, are accurate in all material respects and present fairly the information required to be shown; (xiv) Such counsel does not know of any person who has the right, contractual or otherwise, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Notes or the right, as a result of the consummation of the transactions contemplated by the Operative Documents, to require registration under the Act of any shares of Common Stock or other securities of the Company; (xv) When the Series A Notes are issued and delivered pursuant to this Agreement, such Series A Notes will not be of the same class (within the meaning of Rule 144A(d)(3) under the Act) as any security of the Company that is listed on a national securities exchange registered under Section 6 of the Exchange Act or that is quoted in a United States automated interdealer quotation system; (xvi) No registration of the Series A Notes under the Act is required for the sale of the Series A Notes to the Initial Purchasers as contemplated in this Agreement or for the Exempt Resales (assuming (A) that any Eligible Purchaser who buys the Series A Notes in the Exempt Resales is a QIB or Accredited Institution, (B) the ~~Final~~ accuracy of the Initial Purchasers' representations and those of the Company and the Guarantors in this Agreement and (C) the accuracy of the representations made by each Accredited Institution who purchases Series A Notes pursuant to an Exempt Resale as set forth in the letter of representation executed by such Accredited Institution in the form of Annex A to the Offering Memorandum) (it being understood that no opinion is being expressed as to any resale subsequent to the Exempt Resales or any resale of securities by any person other than the Initial Purchasers); (xvii) The Company and the Guarantors are not required to deliver the information specified in Rule 144A(d)(4) in connection with the offering and resale of the Series A Notes by the Initial Purchasers; (xviii) The Company is not required to obtain stockholder consent for the issuance or offering of the Notes; and In addition, such counsel shall also state that such counsel has participated in conferences with officers and representatives of the Company and the Guarantors, representatives of the independent public accountants for the Company and the Guarantors and the Initial Purchasers at which the contents of the Offering Memorandum and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for and has not verified the accuracy, completeness or fairness of the statements contained in the Offering Memorandum, and has not made any independent check or verification thereof, on the basis of the foregoing (relying as to materiality to the extent such counsel deemed appropriate upon facts provided by officers and other representatives of the Company and the Guarantors), no facts have come to the attention of such counsel that lead such counsel to believe that the Offering Memorandum, as of its date or as of the ~~date of such opinion~~Closing Date, ~~included~~ contained or ~~includes~~ contains any untrue statement of a material fact or omitted or omits to state any material fact necessary ~~in order~~ to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not ~~misleading.~~ misleading (~~ii)~~ it being understood that such counsel need express no belief or opinion with respect to the ~~Company~~ financial statements and ~~each~~ other financial and statistical data included therein). The opinion of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under~~ such counsel may be limited to the laws of ~~their respective jurisdictions~~ the state of ~~incorporation and are duly qualified to transact business as foreign corporations and are in good standing under~~ Texas, the laws of ~~all other jurisdictions where such counsel has been advised that~~ the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York ~~or the United States or~~ and California, the General Corporation Law of the State of ~~Delaware~~Delaware and the federal laws of the United States. Such counsel may rely as to matters of New York and California law, as it relates to the ~~extent satisfactory in form~~ authorization and ~~scope to counsel for~~ enforceability of the ~~Initial Purchasers~~Operative Documents only, ~~upon~~ on the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersdescribed below in Section 7(g). (ce) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and~~ on the Closing ~~Date~~Date an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ~~in form and substance satisfactory to counsel for the Initial Purchasers~~Esq. ~~(d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board~~, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any General Counsel of the Company~~’s securities by any “nationally recognized statistical rating organization”~~, ~~as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On~~ dated the Closing ~~Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company~~ Date and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant addressed to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.th

Appears in 1 contract

Sources: Purchase Agreement (Americredit Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements hereunder~~ obligations hereunder, and to each of the following additional terms and conditions: (a) ~~On the Closing Date, the~~ No Initial ~~Purchasers~~ Purchaser shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date,~~ discovered and disclosed to the ~~effect that: (i)~~ Company prior to or on such ~~counsel has no reason to believe~~ Delivery Date that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date~~ Offering Memorandum or ~~the date of such opinion, included~~ any amendment or ~~includes~~ supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material ~~fact or omitted~~ or omits to state any fact which is material ~~fact~~ and necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and ~~each of its “significant subsidiaries”~~ information that they may reasonably request to enable them to pass upon such matters. (c) ▇▇▇▇▇▇ Godward LLP shall have furnished to the Initial Purchasers their written opinion, as ~~defined~~ counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in ~~Rule 1.02(w~~form and substance satisfactory to the Initial Purchasers, to the effect that: (i) ~~of Regulation S-X under the Exchange Act) have~~ The Company has been duly organized and ~~are~~ is validly existing as ~~corporations~~ a corporation in good standing under the laws of ~~their respective jurisdictions~~ the State of ~~incorporation and are~~ Delaware, and, based solely on certificates of public officials, is duly qualified to ~~transact~~ do business ~~as foreign corporations~~ and ~~are~~ is in good standing ~~under~~ as a foreign corporation in each jurisdiction in which its ownership or lease of property or the ~~laws~~ conduct of ~~all other jurisdictions~~ its business requires such qualification, except where ~~such counsel has been advised that~~ the failure to be so qualified would ~~amount to~~ not have a material ~~liability~~ adverse effect on the Company, whether or ~~disability to~~ not arising in the ~~Company~~ ordinary course of business, and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ has all corporate power and authority necessary to ~~own, lease and operate their respective~~ own or hold its properties and ~~assets and~~ conduct ~~their respective~~ the businesses in which it is engaged, as described in the ~~Final~~ Offering Memorandum; and, ~~and~~ to the knowledge of such counsel, the Company has no subsidiaries; (ii) the Conversion Shares, which are authorized on the date hereof, have been duly and validly authorized and reserved for issuance upon conversion of the Notes by all necessary corporate ~~power~~ action and are free of preemptive rights; all Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable and free and clear of all liens, encumbrances, equities or claims imposed by or arising from actions of the Company; (iii) The statements in the Offering Memorandum under the captions "Description of the Notes" and "Description of Capital Stock", insofar as they purport to ~~enter into~~ summarize the provisions of the Indenture, the Registration Rights Agreement, the Notes and the Common Stock (including the Conversion Shares) are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act; (iv) There is no restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's certificate of incorporation or bylaws; (v) To the knowledge of such counsel and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company is a party or of which any property or asset of the Company is the subject which, if determined adversely to the Company might have a material adverse effect on the Company or which might reasonably be expected to materially and adversely affect the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder; to the actual knowledge of such counsel, no such proceedings are overtly threatened or contemplated by governmental authorities or, except as set forth or contemplated in the Offering Memorandum, overtly threatened by others; and, to the actual knowledge of such counsel, the aggregate of all pending legal or governmental proceedings to which the Company is a party or of which any of its property or assets is the subject (other than the Company's patent applications currently pending before the U.S. Patent and Trademark Office or before any foreign governmental authority that administers the registration of patents) which are not described in the Offering Memorandum, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a material adverse effect on the Company. (vi) The execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions issuance of the Notes and the ~~Indenture, provide a fair summary of such provisions;~~ Conversion Shares and the ~~statements set forth~~ consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificate of incorporation or bylaws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties or assets; and, except as may be required by the securities or "blue sky" laws of any state of the United States in connection with the sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company and the issuance of the Notes and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby; (vii) No registration of the Notes or the Conversion Shares under the ~~heading “~~Securities Act, and no qualification of the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Notes or in connection with the conversion of the Notes into Conversion Shares, in each case, in the manner contemplated by the Offering Memorandum, this Agreement and the Indenture; (viii) The statements in the Offering Memorandum under the caption "Certain United States Federal Income Tax ~~Consequences” in the Final Memorandum~~Considerations", insofar as ~~such statements~~ they purport to constitute ~~a summary~~ summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material respects ~~as would be~~ to the extent required ~~to be disclosed~~ if such statements were contained in a ~~prospectus pursuant to~~ registration statement on Form S-3 under the ~~Act and the Exchange Act and the respective rules and regulations thereunder~~Securities Act; (ivix) The Company is not an "investment company" within the ~~execution and delivery~~ meaning of ~~this Agreement have been duly authorized by~~ the Investment Company Act of 1940, as amended; (x) The Company has all necessary corporate ~~action~~ right, power and authority to execute and deliver each of the ~~Company~~ Operative Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Notes and the Conversion Shares to the Initial Purchasers; (xi) This Agreement has been duly authorized, executed and delivered by the Company; (vxii) ~~the execution and delivery of the~~ The Indenture ~~have~~ has been duly ~~authorized by the Company and~~authorized, ~~when duly~~ executed and delivered by the Company (and, assuming ~~the~~ due authorization, execution and delivery thereof by the Trustee), ~~the Indenture will be~~ constitutes a ~~legal,~~ legally valid and binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its terms ~~(subject~~except as the enforceability thereof may be limited by bankruptcy, ~~as to enforcement of remedies~~insolvency, ~~to applicable bankruptcy~~fraudulent transfer, reorganization, ~~insolvency,~~ moratorium and other similar laws relating to or ~~other laws~~ affecting creditors’ ' rights ~~generally from time~~ generally, subject to ~~time~~ general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in ~~effect). The Indenture meets the requirements for qualification under the TIA.~~a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing; (vixiii) ~~the Notes have~~ The Registration Rights Agreement has been duly ~~authorized by all necessary corporate action of the Company and~~authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), ~~will be~~ constitutes a ~~legal,~~ valid and legally binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its terms ~~(subject,~~ except as ~~to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any~~ rights to indemnity ~~or contribution thereunder~~ contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), by an implied covenant of good faith and fair dealing; and (xiv) The Notes have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and the Delaware General Corporation Law and may state ~~securities laws~~ that it is relying, in respect of matters of New York law, upon Brown & Wood LLP, and in respect of matters of fact, upon certificates of officers of the Company, PROVIDED that such counsel shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with officers and other representatives of the Company, the Company's independent public ~~policy considerations~~accountants, the Initial Purchasers and their counsel, at which the contents of the Offering Memorandum were discussed, and while such counsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (other than the financial statements, financial and statistical data and supporting schedules as to which such counsel shall make no statement), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (ixd) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel and Secretary of the ~~execution~~ Company, shall have furnished to the Initial Purchasers his written opinion, addressed to the Initial Purchasers and ~~delivery by~~ dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that: (i) The authorized, issued and outstanding capital stock of the Company, as of September 30, 1999, is as set forth in the Offering Memorandum under the column entitled "Actual" under the caption "Capitalization", and all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable; (ii) Except as disclosed in the Offering Memorandum, there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, ~~and the performance by~~ any shares of Common Stock pursuant to any agreement or other instrument to which the Company is a party known to such counsel; the issuance of ~~its obligations under~~the Conversion Shares, upon conversion of the Notes in accordance with the terms of the Indenture, will not be subject to the preemptive or other similar rights of any securityholder of the Company and (iii) The execution, delivery and performance of this ~~Agreement, the Registration Rights~~ Agreement, the Indenture and the ~~Notes,~~ Registration Rights Agreement and the ~~Exchange~~ issuance of the Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Conversion Shares and the consummation of the ~~other~~ transactions ~~herein~~ contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms ~~and~~ or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, ~~lease~~ loan agreement or other ~~material~~ agreement or ~~instrument,~~ instrument known to such ~~counsel,~~ counsel to which the Company ~~or any of its significant subsidiaries~~ is a party or by which the Company is bound or to which any of ~~its significant subsidiaries~~ the property or ~~any of their respective properties are bound, or the charter documents or by-laws~~ assets of the Company ~~or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such~~ is subject. Such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes shall also have furnished to the Initial Purchasers ~~as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement~~a written statement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes addressed to the Initial Purchasers and ~~the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any~~ dated such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that he has no reason to believe that the statements under the captions "Risk Factors--Our patents may not protect our products and our products may infringe on third-party patent rights" and "Patents and Proprietary Rights" in the Offering Memorandum, as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (e) Brown & Wood LLP, shall have furnished to the Initial Purchasers their written opinion, as counsel ~~for~~ to the Initial Purchasers, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers. (df) With respect to the letter of ▇▇▇▇▇ & Young LLP delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter. (g) The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers at on such Delivery Date a certificate, dated such Delivery Date and delivered on behalf of the ~~Closing a certificate~~ Company by one of its ~~Chairman of the Board, its President or its Chief Executive Officer~~ co-chief executive officers and its ~~Chief Financial Officer~~ chief financial officer, in form and substance satisfactory to the Initial ~~Purchasers~~ Purchasers, to the effect that: (i) ~~the representations~~ The representations, warranties and ~~warranties~~ agreements of the Company in ~~this Agreement~~ Section 1 are true and correct as ~~if made on~~ of the date given and as of ~~the Closing~~ such Delivery Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory complied in all material respects with all its agreements contained herein to ~~the Initial Purchasers and counsel for the Initial Purchasers.~~ be performed prior to or on such Delivery Date; (A) The Company ~~shall furnish to~~ has not sustained since the ~~Initial Purchasers such conformed copies~~ date of ~~such opinions, certificates, letters, and documents in such quantities as~~ the ~~Initial Purchasers shall reasonably request.~~latest au

Appears in 1 contract

Sources: Purchase Agreement (Inhale Therapeutic Systems Inc)

Appears in 1 contract

Sources: Purchase Agreement (Interface Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers to purchase the Securities under this Agreement are subject to the satisfaction of each of the following conditions: (a) All the representations and ~~pay~~ warranties of the Issuers contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date. The Company shall have performed or complied with all of its obligations and agreements herein contained and required to be performed or complied with by it at or prior to the Closing Date. (i) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers as promptly as practicable following the date of this Agreement or at such other date and time as to which you may agree, (ii) and no stop order suspending the sale of the Securities by the Commission or in any jurisdiction referred to in Section 3(e) of this Agreement shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (c) 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 ~~Notes shall~~Closing Date, ~~be subject~~prevent the issuance of the Securities; and 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 Securities or the consummation of the Pending Transactions. (i) Since the date hereof or since the dates as of which information is given in the Offering Memorandum, there shall not have been any Material Adverse Change, (ii) since the date of the latest balance sheet included, or incorporated by reference, in the Offering Memorandum, there shall not have been any material change in the capital stock or long- term debt, or material increase in short-term debt, of the Company or any of the Subsidiaries taken as a whole and (iii) the Company and the Subsidiaries taken as a whole, shall have no liability or obligation, direct or contingent, that is material to the Company and the Subsidiaries taken as a whole, respectively, and is required to be disclosed on a balance sheet in accordance with GAAP and is not disclosed on the latest applicable balance sheet included in the Offering Memorandum. (e) The Securities shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the PORTAL market. (f) You shall have received a certificate of the Company, dated the Closing Date, executed on behalf of the Company, by the President or any Vice President and a principal financial or accounting officer of the Company confirming, as of the Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 7. (g) On the Closing Date, you shall have received: (1) an opinion (satisfactory to you and your counsel), dated the Closing Date, of ▇▇▇▇▇▇▇, Head & ▇▇▇▇▇▇▇, counsel for the Company, (which opinion shall, in regards to any matters covered by the law of the States of Colorado, Florida or Georgia, rely on the opinion of Colorado, Florida or Georgia counsel, respectively, reasonably acceptable to the Initial Purchasers~~’ sole discretion~~), to the effect that: (i) (A) the Company and each of the Subsidiaries is a duly organized and validly existing corporation in good standing under the laws of its jurisdiction of incorporation, has the requisite 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 qualified as a foreign corporation and in good standing in each jurisdiction where the ownership, leasing or operation of property or the conduct of its business requires such qualification, except where the failure to be so qualified could not be reasonably expected to have, singly or in the aggregate, a Material Adverse Effect; and (B) the Issuers have the requisite corporate power and authority to execute, deliver and perform this Agreement and the Registration Rights Agreement; (ii) the Transaction Documents have been duly authorized, executed and delivered by the Issuers, as applicable; (iii) the authorized, issued and outstanding capital stock of the Company is as set forth in the Offering Memorandum under "Capitalization"; (iv) all of the issued and outstanding shares of capital stock of, or other ownership interests in, each Subsidiary have been duly and validly authorized and issued, and the shares of capital stock of, or other ownership interests in, each Subsidiary are owned, directly or through Subsidiaries, by the Company, are fully paid and nonassessable, and are owned free and clear of any Lien, except for Liens pursuant to the Credit Facility; (v) to the knowledge of such counsel (after due inquiry) there are no outstanding subscriptions, rights, warrants, options, calls, convertible securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, any Subsidiary except as disclosed in the Offering Memorandum; (vi) neither the Company nor any of the Subsidiaries is (A) an "investment company" or a company "controlled" by an investment company within the meaning of the Investment Company Act of 1940, as amended, or (B) a "holding company" or a "subsidiary company" of a holding company, or an "affiliate" thereof within the meaning of the Public Utility Holding Company Act of 1935, as amended; (vii) neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities, will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System; (viii) when authenticated in accordance with the terms of the Indenture and delivered to and paid for in accordance with the terms of this Agreement, the Guarantee and the Securities will constitute valid and legally binding obligations of the Guarantors and JCC, respectively, enforceable against the Guarantors and JCC, respectively, in accordance with their respective terms and entitled to the benefits of the Indenture, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and except to the extent that a waiver of rights under any usury laws may be unenforceable; (ix) the Indenture, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Issuers, respectively, enforceable against the Issuers, in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceed- ing at law or in equity) and except to the extent that a waiver of rights under any usury laws may be unenforceable; (x) the Securities and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum; (xi) to the best knowledge of such counsel, there is no current, pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary or to which any of their respective properties is subject of a character that would be required to be disclosed in the Offering Memorandum if it were a prospectus that was part of a registration statement filed under the Act which is not adequately disclosed in the Offering Memorandum; (xii) the descriptions in the Offering Memorandum of statutes, legal and governmental proceedings and contracts and other documents are accurate in all material respects and fairly present the information that would be required to be shown if it were a prospectus that was part of a registration statement filed under the Act; and such counsel does not know of any legal or governmental proceedings that would be required to be described in the Offering Memorandum if it were a prospectus that was part of a registration statement filed under the Act which are not described as required or of any contracts or documents of a character that would be required to be described in the Offering Memorandum if it were a prospectus that was part of a registration statement filed under the Act which are not described as required; it being understood that such counsel need express no opinion as to the financial statements, notes or schedules or other financial data included therein; (xiii) assuming the accuracy of the representations and warranties of the Company contained ~~herein~~ in paragraphs (y) and (z) of Section 4, and your representations and warranties contained in Section 5 of this Agreement, and assuming compliance by the Company with the covenants of the Company contained in Section 3 and by you with your agreements contained in Section 5 of this Agreement, the issuance and sale of the Securities to you and the offering, resale and delivery of the Securities by you, in each case in the manner contemplated in the Offering Memorandum, are exempt from the registration requirements of the Act and it is not necessary to qualify the Indenture under the TIA; (xiv) no authorization, approval, consent or order of, or filing with, any court or governmental body or agency is required for the consummation by the Issuers of the transactions contemplated by this Agreement, except such as have been obtained and made under state securities or "Blue Sky" laws or regulations or such as may be required by the NASD; no authorization, approval, consent or order of, or filing with, any court or governmental body or agency is required for the consummation by the Issuers, as applicable, or Premiere, of the transactions contemplated by the applicable Transaction Documents, except as disclosed in the Offering Memorandum; the execution and delivery of this Agreement, the Registration Rights Agreement and the Indenture, the issuance and sale of the Securities, the performance of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in a breach or violation of any of (A) any of the respective charters or bylaws of the Company or any of the Subsidiaries or (B) to the knowledge of such counsel (after due inquiry), the terms or provisions of any agreement or instrument which is filed as an exhibit to the Company's most recent annual report on Form 10-K, each subsequently filed quarterly report on Form 10-Q and current report on Form 8-K, to which the Company or any Subsidiaries is a party or by which any of them is bound or to which any of the properties of the Company or any of the Subsidiaries is subject or (C) to the knowledge of such counsel (after due inquiry) constitute a default under, any statute, rule or regulation to which the Company or any Subsidiary is bound or to which any of the properties of the Company or any Subsidiary is subject or (D) any order of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries or any of their properties which conflict, breach or default in each of the cases described in clauses (B) , (C) and (D) could reasonably be expected to have a Material Adverse Effect; (xv) to the knowledge of such counsel, neither the Company nor the Subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to the Intellectual Property which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to result in a Material Adverse Change. The use of such Intellectual Property in connection with the business and operations of the Company and the Subsidiaries does not, to the knowledge of such counsel, infringe on the rights of any person; (xvi) to the best knowledge of such counsel, (A) there are no franchises, contracts, indentures, mortgages, loan agreements, notes, leases or other instruments to which the Company, any of the Subsidiaries or Premiere are a party or by which any of them may be bound that would be required to be described in the Offering Memorandum if it were a prospectus that was part of a registration statement filed under the Act other than those described therein and (B) no default exists in the due performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument that would be required to be so described, or any agreement identified on a schedule attached to the opinion, except for defaults which could not rea- sonably be expected to have a Material Adverse Effect; (xvii) the Company, the Subsidiaries and Premiere, to the extent each is a party thereto, have full corporate power and authority to execute, deliver and perform its respective obligations under the applicable Transaction Documents; (xviii) the Transaction Documents, assuming the authorization, execution and delivery thereof by the parties other than the Issuers, as applicable, and Premiere constitute valid and legally binding agreements of the respective parties thereto enforceable against each of the parties, to the extent each is a party thereto, in accordance with their respective terms subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and to principles of equity (regardless of whether enforcement is sought in a proceeding at law or equity) and except to the extent that a waiver of rights under usury laws may be unenforceable; and (xix) the approval of the transactions contemplated by the Transaction Documents by the shareholders of the Company is not required. (2) Such counsel shall additionally state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, your representatives and your counsel in connection with the preparation of the Offering Memorandum and has considered the matters and the statements contained therein, although such counsel has not independently verified the accuracy, completeness or fairness of such statements (except as indicated above); and such counsel advises you that, on the basis of the foregoing, no facts came to such counsel's attention that caused such counsel to believe that the Offering Memorandum (as amended or supplemented, if applicable), as of the date ~~hereof~~ thereof and as of ~~each Closing Date, as if made on and as of each Closing Date, to~~ the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions~~ date hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained ~~therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact necessary ~~in order~~ to make the statements ~~therein,~~ therein in ~~the~~ light of the circumstances under which they were made, not misleading~~. (ii)~~ . Without limiting the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where foregoing, such counsel ~~has been advised~~ may further state that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandumfirm assumes no responsibility for, and the ~~Company~~ firm has ~~corporate power to enter into this Agreement~~not independently verified, the ~~Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and~~ accuracy, completeness or fairness of the ~~Notes to be carried out by it; all of the issued~~ financial statements, notes and ~~outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth~~ schedules and other financial data included in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (~~xii~~3) ~~commencing with the Company’s taxable year ended December 31, 1998, the Company was organized~~ An opinion (satisfactory to you and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreementyour counsel), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at dated the Closing ~~Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇~~Date of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ ~~LLP~~L.L.P., counsel for the ~~Initial Purchasers, dated the Closing Date,~~ Company with respect to ~~certain legal matters relating to this Agreement~~ FCC and ~~such other~~ related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) those statements in the ~~representations and warranties~~ Offering Memorandum (including the statements incorporated by reference in the Offering Memorandum, under the caption "Business -- Federal Regulation of Radio Broadcasting" in the Company's Form 10-K filed for the year ended December 31, 1996) that describe provisions of the ~~Company in this Agreement are true and correct~~ Communications Act of 1934, as ~~if made on and as of~~ amended (the ~~Closing Date;~~ "Communications Act"), and the ~~Company has performed~~ FCC's published rules or regulations (for purposes of this opinion only, the "Rules") are accurate descriptions in all ~~covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and~~material respects. (ii) ~~subsequent~~ Schedule A to this opinion sets forth a complete list of the main station authorizations issued by the FCC to the ~~respective dates as of which information is given in the Final Memorandum~~ Company and its Subsidiaries (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of ~~Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date~~this opinion only, the ~~Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and~~ "Licenses"). To such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.counsel's knowledg

Appears in 1 contract

Sources: Purchase Agreement (Jacor Communications Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers to purchase ~~and pay for~~ the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder ~~and~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Notes in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated. (b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Notes. (c) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from~~ of Fulbright & ▇▇▇▇▇▇▇▇ ~~Chance US LLP~~L.L.P., counsel for the Company, dated the Closing ~~Date~~Date and addressed to the Initial Purchasers, to the effect that: (i) ~~such counsel has no reason to believe that (other than the financial statements~~ The Company is a corporation duly incorporated and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing ~~as corporations~~ in good standing under the laws of ~~their respective jurisdictions~~ the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have Delaware with full corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the ~~Final Memorandum~~Offering Memorandum (and any amendment or supplement thereto); (ii) Each Significant Subsidiary (as defined in Section 1.02(w) of Regulation S-X promulgated under the Act) is a corporation validly existing and in good standing under the laws of the jurisdiction of its organization, with full corporate power and authority to own, lease, and ~~the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture~~ operate its properties and to ~~carry out~~ conduct its business as described in the Offering Memorandum (and any amendment or supplement thereto); and all the ~~terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and~~ outstanding shares of capital stock of each of the ~~Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum~~Significant Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and to the knowledge of such counsel, are wholly owned ~~beneficially~~ by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any ~~perfected~~ security ~~interests or~~interest, ~~to the best knowledge of such counsel~~lien, ~~any~~ adverse claim, equity or other ~~security interests, liens, encumbrances, equities or claims~~encumbrance, except as described in the Offering Memorandum and except for ~~pledges~~ the shares of ~~subsidiary~~ capital stock ~~under debt instruments~~of certain Subsidiaries pledged to Citibank as agent in connection with the Credit Agreement and/or to Meditrust; (iii) The authorized capital stock of the ~~statements~~ Company is as set forth under the ~~heading “Description of Notes”~~ caption "Capitalization" in the ~~Final~~ Offering Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) The Company has corporate power and authority to enter into this Agreement and the ~~execution~~ Registration Rights Agreement and ~~delivery of~~ to issue, sell and deliver the Notes to be sold by it to the Initial Purchasers as provided herein, and this Agreement and the Registration Rights Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company andauthorized, ~~when duly~~ executed and delivered by the Company ~~(assuming the due authorization~~and are valid, ~~execution and delivery thereof by the Trustee), the Indenture will be a legal, valid~~ legal and binding ~~agreement~~ agreements of the Company, enforceable against the Company in accordance with ~~its terms~~ their terms, except (~~subject,~~ A) as to enforcement of ~~remedies~~rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy and (B) subject to the qualification that the enforceability of the Company's obligations hereunder and thereunder may be limited by bankruptcy, ~~to applicable bankruptcy~~fraudulent conveyance, insolvency, reorganization, ~~insolvency~~moratorium, ~~moratorium or~~ and other laws relating to or affecting creditors’ ' rights generally ~~from time to time in effect).~~ and by general equitable principles; (v) The Indenture ~~meets the requirements for qualification under the TIA. (vi) the Notes have~~ has been duly ~~authorized by all necessary corporate action of the Company and~~and validly authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery ~~of the Indenture~~ by the ~~Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture)~~Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be is a ~~legal,~~ valid and binding agreement of the Company, enforceable ~~against the Company~~ in accordance with its ~~terms (subject~~terms, as subject to ~~enforcement~~ the qualification that the enforceability of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution the Company's obligations thereunder may be limited by ~~federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of~~bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and ~~the performance~~ other laws relating to or affecting creditors' rights generally and by ~~the Company~~ general equitable principles; and no qualification of ~~its obligations under, this Agreement, the Registration Rights Agreement,~~ the Indenture ~~and~~ under the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be 1939 Act is required ~~by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions~~ in connection with the offer and sale of the Notes ~~by the Initial Purchasers and except those that may be required by the Act~~ contemplated hereby or ~~the TIA~~ in connection with the ~~exchange offer contemplated~~ Exempt Resales; (vi) The Notes have been duly and validly authorized by the Company and when executed by the Company in accordance with the Indenture and, assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; (vii) Neither the offer, sale or delivery of the Notes, the execution, delivery or performance by the Company of this Agreement, the Registration Rights ~~Agreement~~Agreement or the Indenture, compliance by the Company with the provisions hereof or ~~(y) conflict with~~ thereof nor consummation by the Company of the transactions contemplated hereby or ~~result in~~ thereby constitutes or will constitute a breach or violation ~~of any of the terms and provisions~~ of, or ~~constitute~~ a default under, in any material respect, the certificate or articles of incorporation or bylaws or other organizational documents of the Company or any of the Significant Subsidiaries or any material agreement, indenture~~, mortgage, deed of trust~~, lease or other ~~material agreement or instrument, known to such counsel,~~ instrument to which the Company or any of ~~its significant subsidiaries~~ the Significant Subsidiaries is a party or by which ~~the Company or~~ any of ~~its significant subsidiaries~~ them or any of their respective properties ~~are bound~~is bound that is an exhibit to any Incorporated Document or is known to such counsel, or will result in the ~~charter documents~~ creation or ~~by-laws~~ imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of ~~its significant subsidiaries~~the Significant Subsidiaries pursuant to the terms of any material agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of the property or assets of any of them is subject that is an exhibit to any Incorporated Document or is known to such counsel, nor will any such action result in any violation in any material respect of any existing law, or any ~~statute or any~~ regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws and, in the case of the Registration Rights Agreement, the Act and the Exchange Act and the 1939 Act), judgment, ~~decree~~injunction, ~~order, rule~~ order or ~~regulation of any court or other governmental authority or any arbitrator~~ decree known to such ~~counsel and~~ counsel, applicable to the Company or ~~its significant subsidiaries~~the Significant Subsidiaries or any of their respective properties; (xviii) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property part of the Company (except as have been obtained under the Exchange Act, or ~~any~~ such as may be required under state securities or Blue Sky laws governing the purchase and distribution of ~~its subsidiaries is subject that would~~ the Notes, or such as may be required to ~~be described in a prospectus pursuant to~~ qualify the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) Indenture under the ~~Code~~1939 Act, and ~~the Company’s present and proposed method of operation,~~ such as ~~represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is~~ may be required in connection with the performance by the Company of its obligations under the Registration Rights Agreement, as to which such counsel need not express an opinion) for the valid issuance and sale of the Notes to the Initial Purchasers as contemplated by this ~~Agreement~~ Agreement; (ix) The Incorporated Documents (except for the financial statements and the ~~Final~~ notes thereto and the schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion), at the time they were filed, appear on their face to have complied as to form in all material respects with the requirements of the Exchange Act; (x) To the knowledge of such counsel, (A) there are no legal or governmental proceedings pending or threatened against the Company or any of the Subsidiaries, or to which the Company or any of the Subsidiaries, or any of their property, are subject, which are not disclosed in the Offering Memorandum and which, if adversely decided, are reasonably likely to cause a Material Adverse Effect or materially affect the issuance of the Notes or the consummation of the transactions contemplated by the Operative Documents and (B) there are no material agreements, contracts, indentures, leases or other instruments, that are not described in the Offering Memorandum (or any amendment or supplement thereto) or that are required to be filed as an exhibit to any Incorporated Document that are not filed as required; (xi) The statements in the Offering Memorandum, insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions, are accurate in all material respects and present fairly the information required to be shown; (xii) When the Notes are issued and delivered pursuant to this Agreement, such Notes will not be of the same class (within the meaning of Rule 144A(d)(3) under the Act) as any security of the Company that is listed on a national securities exchange registered under Section 6 of the Exchange Act or that is quoted in a United States automated interdealer quotation system; (xiii) No registration of the Notes under the Act is required for the sale of the Notes to the Initial Purchasers as contemplated in this Agreement or for the Exempt Resales (assuming (A) that any Eligible Purchaser who buys the Notes in the Exempt Resales is a Qualified Institutional Buyer and (B) the accuracy of the Initial Purchasers' representations and those of the Company in this Agreement regarding the absence of general solicitation in connection with the ~~initial~~ Exempt Resales); (xiv) The Company is not required to deliver the information specified in Rule 144A(d)(4) in connection with the offering and resale of the Notes by the Initial ~~Purchasers~~ Purchasers; and (xv) Although such counsel has not undertaken, except as otherwise indicated in ~~accordance with Section 8 of this Agreement~~their opinion, to determine independently, and ~~prior~~ does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Offering Memorandum, such counsel has participated in the preparation of the Offering Memorandum, including review and discussion of the contents thereof, and has reviewed the Incorporated Documents, and, relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company, nothing has come to the ~~commencement~~ attention of such counsel that has caused them to believe that the Offering Memorandum, as of its date and as of the ~~Exchange Offer (as defined in the Registration Rights Agreement)~~ Closing Date contained an untrue statement of a material fact or ~~the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not~~ omitted to state a material fact required to be ~~qualified under~~ stated therein or necessary to make the ~~TIA~~statements therein, in ~~each case assuming~~ light of the circumstances under which they were made, not misleading or that any amendment or supplement to the Offering Memorandum, as of its respective date, and as of the Closing Date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (~~i) (A)~~ it being understood that such counsel need express no opinion with respect to the ~~purchasers who buy such Notes~~ financial statements and the notes thereto and the schedules and other financial and statistical data included or incorporated by reference in the ~~initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”)~~ Offering Memorandum and information furnished by or ~~(B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy~~ on behalf of the Initial Purchasers~~’ representations in Section 8 and those~~ ). The opinion of such counsel shall be limited to the laws of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinionUnited States, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or and the ~~United States or the General Corporation Law~~ internal corporation law of the State of Delaware~~, to~~ . (d) The Initial Purchasers shall have received on the ~~extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the~~ Closing Date an opinion of ▇▇▇▇▇▇▇▇ ~~LLP~~▇. ~~An opinion of~~ ▇▇▇▇▇▇~~▇ LLP shall be delivered to~~ , Esq., General Counsel of the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersCompany, dated the Closing ~~Date, with respect to certain legal matters relating to this Agreement~~ Date and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory addressed to the Initial Purchasers to the effect that: (i) The Company is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the ~~representations and warranties~~ nature of its properties or the ~~Company in this Agreement are true and correct as if made on and as~~ conduct of its business requires such registration or qualification, except where the ~~Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part~~ failure so to register or qualify or to be ~~performed or satisfied at or prior to the Closing Date; and~~in good standing does not have a Material Adverse Effect; (ii) ~~subsequent~~ All the shares of capital stock of the Company outstanding prior to the ~~respective dates~~ issuance of the Notes have been duly authorized and validly issued, are fully paid and nonassessable; (iii) Each Subsidiary is duly registered and qualified to conduct its business and is in good standing as a foreign corporation or limited partnership in each jurisdiction or place where the nature of ~~which information is given~~ its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or to be in ~~the Final Memorandum~~ good standing does not have a Material Adverse Effect; (~~exclusive of any amendment or supplement thereto), neither~~ iv) Neither the Company nor any of ~~its subsidiaries has sustained~~ the Subsidiaries is in violation in any material ~~loss~~ respect of its respective certificate or ~~interference with~~ articles of incorporation or bylaws, or other organizational documents, or to the best knowledge of such counsel after reasonable inquiry, is in default in any material respect in the performance of any material obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective ~~businesses~~ properties may be bound, except as disclosed in the Offering Memorandum and except to the extent that any such violation or ~~properties from fire, flood, hurricane, accident or other calamity, whether or~~ default would not ~~covered by insurance, or from any labor dispute or any legal or governmental proceeding,~~ have a Material Adverse Effect; (v) Such counsel has no reason to believe that the Company and ~~there has~~ its Subsidiaries do not ~~been any materially adverse change~~ have all Permits (including, without limitation, such Permits as are necessary under such federal and state health care laws and under such HMO and similar licensure laws and such insurance laws and regulations as are applicable to the Company and its Subsidiaries) as are necessary to own, lease and operate its properties and conduct its business, except to the extent that the failure to have such Permits would not have a ~~change in management~~ Material Adverse Effect; and to the best knowledge of such counsel after reasonable inquiry there are no proceedings pending or ~~control),~~ threatened against the Company or ~~development involving a prospective materially adverse change, in~~ any of its Subsidiaries that may cause any such Permit that is material to the ~~condition (financial or otherwise), management, earnings, properties,~~ conduct of the business ~~affairs or business prospects, stockholders’ equity, net worth or results of operations~~ of the Company or any of its ~~subsidiaries~~Subsidiaries to be revoked, ~~taken as a whole~~withdrawn, ~~except in each case as described in~~ cancelled, suspended or ~~contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).~~not renewed; (evi) ~~Subsequent~~ Such counsel has no reason to believe that (a) the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction business practices of the ~~possible change~~Company or any of its Subsidiaries violate in any material respect any applicable provisions of federal or state law governing Medicare or any state Medicaid program, including without limitation, Sections 1320a-7a and 1320a-7b of Title 42 of the United States Code, or that any individual with an ownership or control interest, as defined in 42 U.S.C. ss.1320a-3(a)(3), in the ~~rating accorded~~ Company or any of ~~the Company’s securities by any “nationally recognized statistical rating organization”~~its Subsidiaries or who is an officer, director, or managing employee as ~~such term is~~ defined ~~for purposes~~ in 42 U.S.C. ss.1320a-5(b), of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.or

Appears in 1 contract

Sources: Purchase Agreement (Integrated Health Services Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes ~~shall,~~ on the Closing Date will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties on the part of the ~~Company contained herein as of the date hereof~~ Issuer and ~~as of each Closing Date~~Horizon herein, ~~as if made on and as of each Closing Date, to~~ the accuracy of the statements of officers of the ~~Company’s officers~~ Issuer made pursuant to the provisions hereof, to the performance by each of Horizon and the ~~Company~~ Issuer of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) The Initial Purchaser shall have received a letter or letters of RSM US LLP in form and substance satisfactory to the Initial Purchaser, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters, with respect to certain financial or statistical information set forth in the Offering Document. (b) Subsequent to the execution and delivery of this Agreement, the Initial Purchaser may terminate this Agreement by notice given by the Initial Purchaser to the Issuer, if after the execution and delivery of this Agreement and prior to the Closing Date: (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Initial Purchaser, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Notes, whether in the primary market or in respect of dealings in the secondary market, (ii) trading generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange or the NASDAQ National Market, or there shall have been any setting of minimum prices for trading on any such exchange, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any general moratorium on commercial banking activities shall have been declared by Federal or New York State authorities, (v) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis or natural disaster or a declaration by the United States of a national emergency or war or any other major act of terrorism involving the United States, or any other substantial national or international calamity, emergency or crisis, the effect of which is material and adverse, and which singly or together with any other event specified in this subsection (b), makes it, in the judgment of the Initial Purchaser, impracticable or inadvisable to proceed with the offer, sale or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale Information or the PPM, or (vi) any change, or any development that could reasonably be expected to cause a change, affecting the business or properties of the Issuer or Horizon occurs that, in the judgment of the Initial Purchaser, is material and adverse, and which singly or together with any other event specified in this subsection (b), makes it, in the judgment of the Initial Purchaser, impracticable or inadvisable to proceed with the offer, sale or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale Information or the PPM. Upon such notice being given, subject to Section 9 hereof, the parties to this Agreement shall be released and discharged from their respective obligations under this Agreement. (c) The Notes shall have been duly authorized, executed, authenticated, delivered and issued, and each of 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 all conditions precedent contained in the Transaction Documents shall have been satisfied or waived. (d) On or before the Closing Date, all actions required to be taken in order to perfect: (i) the Issuer's ownership and security interest in the Initial ~~Purchasers~~ Loans and related assets and (ii) the Indenture Trustee's first priority, perfected security interest in the Trust Estate shall have been taken. The Initial Purchaser shall have received a evidence reasonably satisfactory to the Initial Purchaser that UCC financing statements in the State of Delaware with respect to (1) the sale of the Initial Loans and related assets from Horizon to the Issuer and (2) the pledge of the Trust Estate from the Issuer to the Indenture Trustee are being filed (or will be sent for filing within three Business Days of the Closing Date). (e) The Initial Purchaser shall have received legal ~~opinion from ▇▇▇▇▇▇▇▇ Chance US~~ opinions of Dechert LLP, counsel ~~for~~ to the ~~Company~~Horizon Entities, (i) with respect to certain corporate, enforceability, federal tax, security interest, securities law and investment company matters, in form and substance satisfactory to the Initial Purchaser, (ii) with respect to certain “true sale” issues in form and substance satisfactory to the Initial Purchaser and (iii) with respect to certain “non-consolidation” issues in form and substance satisfactory to the Initial Purchaser. Dechert LLP shall also provide a customary “negative assurances” letter, dated as of the Closing Date, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to its counsel, containing customary exceptions and limitations, to the effect ~~that: (i)~~ that such counsel has no reason to believe that ~~(other than~~ the ~~financial statements and other financial information contained therein~~Preliminary PPM, ~~as to which such counsel need express no opinion)~~ at the ~~Final Memorandum~~Time of Sale, or the PPM, as of ~~its date or~~ the date thereof and as of ~~such opinion~~the Closing Date, included ~~or includes~~ any untrue statement of a material fact or omitted ~~or omits~~ to state any material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading~~misleading (in each case, other than the financial statements and other information of a statistical, accounting or financial nature included in the Preliminary PPM and PPM). (iii) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Initial Purchaser shall have ~~been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified~~ received a letter from Dechert LLP that it has no reason to ~~transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised~~ believe that the ~~failure to be so qualified would amount to a material liability or disability to~~ Preliminary PPM, together with the ~~Company and its subsidiaries~~Pricing Information, ~~taken~~ as ~~a whole;~~ of the ~~Company and each~~ Time of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum~~Sale, and the ~~Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and~~ PPM as of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery date thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the ~~Notes will have been duly executed and delivered by the Company and~~statements therein not misleading, ~~assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject,~~ it being understood that such counsel need express no opinion as to ~~enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium~~ the financial statements or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act financial data contained in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)Offering Document. (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) ~~the accuracy of the~~ The Initial ~~Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of~~ Purchaser shall have received a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇letter from K▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇F▇▇▇▇▇▇ LLP ~~shall have received~~ that it has no reason to believe that the Preliminary PPM, together with the Pricing Information, as of the Time of Sale, and ~~may rely upon such certificates and other documents and information~~ the PPM as ~~it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively,~~ of the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on thereof and as of the Closing Date~~; and~~ , contained any untrue statement of a material fact or omitted to state any material fact necessary to make the ~~Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior~~ statements therein not misleading, it being understood that such counsel need express no opinion as to the ~~Closing Date; and (ii) subsequent to the respective dates as of which information is given~~ financial statements or other financial data contained in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties theretoOffering Document. (g) ~~On the Closing Date, the~~ The Initial ~~Purchasers~~ Purchaser shall have received from each party to the ~~Registration Rights Agreement executed by the Company and~~ Transaction Documents such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinionsinformation, certificates, ~~letters~~ opinions and documents ~~delivered pursuant to~~ as the Initial Purchaser may reasonably have requested and all proceedings in connection with the transactions contemplated by this Agreement ~~will comply with the provisions hereof only if they are satisfactory~~ and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial ~~Purchasers~~ Purchaser. (i) The Notes shall have received a rating of at least "A+" from the Rating Agency, and ~~counsel for~~ (ii) such rating shall not have been rescinded, and no public announcement shall have been made by (x) the Rating Agency that the rating of such Notes has been placed under review or (y) by a non-hired rating agency that it has issued an unsolicited lower rating on such Notes. (i) At least two business days prior to the date hereof, each Horizon Entity and any affiliate thereof to which the Beneficial Ownership Regulation is applicable with respect to the transactions undertaken pursuant to the Transaction Documents, to the extent that any such entity qualifies as a "legal entity customer" under the Beneficial Ownership Regulation shall (i) deliver, or ensure that it has delivered, to each Initial Purchaser that so requests, a Beneficial Ownership Certification in relation to itself, or (ii) deliver to each Initial Purchaser an updated Beneficial Ownership Certification if any previously delivered Beneficial Ownership Certification ceases to be true and correct in all respects.. The Initial Purchaser may in its sole discretion waive compliance with any conditions to the obligations of the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably requestPurchaser hereunder.

Appears in 1 contract

Sources: Note Purchase Agreement (Horizon Technology Finance Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements hereunder~~ obligations hereunder, and to each of the following additional terms and conditions: (a) ~~On the Closing Date, the~~ No Initial ~~Purchasers~~ Purchaser shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date,~~ discovered and disclosed to the ~~effect that: (i)~~ Company prior to or on such ~~counsel has no reason to believe~~ Delivery Date that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date~~ Offering Memorandum or ~~the date of such opinion, included~~ any amendment or ~~includes~~ supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material ~~fact or omitted~~ or omits to state any fact which is material ~~fact~~ and necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and ~~each of its “significant subsidiaries”~~ information that they may reasonably request to enable them to pass upon such matters. (c) ▇▇▇▇▇▇ Godward LLP shall have furnished to the Initial Purchasers their written opinion, as ~~defined~~ counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in ~~Rule 1.02(w~~form and substance satisfactory to the Initial Purchasers, to the effect that: (i) ~~of Regulation S-X under the Exchange Act) have~~ The Company has been duly organized and ~~are~~ is validly existing as ~~corporations~~ a corporation in good standing under the laws of ~~their respective jurisdictions~~ the State of ~~incorporation and are~~ Delaware, and, based solely on certificates of public officials, is duly qualified to ~~transact~~ do business ~~as foreign corporations~~ and ~~are~~ is in good standing ~~under~~ as a foreign corporation in each jurisdiction in which its ownership or lease of property or the ~~laws~~ conduct of ~~all other jurisdictions~~ its business requires such qualification, except where ~~such counsel has been advised that~~ the failure to be so qualified would ~~amount to~~ not have a material ~~liability~~ adverse effect on the Company, whether or ~~disability to~~ not arising in the ~~Company~~ ordinary course of business, and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ has all corporate power and authority necessary to ~~own, lease and operate their respective~~ own or hold its properties and ~~assets and~~ conduct ~~their respective~~ the businesses in which it is engaged, as described in the ~~Final~~ Offering Memorandum; and, ~~and~~ to the knowledge of such counsel, the Company has no subsidiaries; (ii) the Conversion Shares, which are authorized on the date hereof, have been duly and validly authorized and reserved for issuance upon conversion of the Notes by all necessary corporate ~~power~~ action and are free of preemptive rights; all Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable and free and clear of all liens, encumbrances, equities or claims imposed by or arising from actions of the Company; (iii) The statements in the Offering Memorandum under the captions "Description of the Notes" and "Description of Capital Stock", insofar as they purport to ~~enter into~~ summarize the provisions of the Indenture, the Registration Rights Agreement, the Notes and the Common Stock (including the Conversion Shares) are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act; (iv) There is no restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's certificate of incorporation or bylaws; (v) To the knowledge of such counsel and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company is a party or of which any property or asset of the Company is the subject which, if determined adversely to the Company might have a material adverse effect on the Company or which might reasonably be expected to materially and adversely affect the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder; to the actual knowledge of such counsel, no such proceedings are overtly threatened or contemplated by governmental authorities or, except as set forth or contemplated in the Offering Memorandum, overtly threatened by others; and, to the actual knowledge of such counsel, the aggregate of all pending legal or governmental proceedings to which the Company is a party or of which any of its property or assets is the subject (other than the Company's patent applications currently pending before the U.S. Patent and Trademark Office or before any foreign governmental authority that administers the registration of patents) which are not described in the Offering Memorandum, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a material adverse effect on the Company. (vi) The execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions issuance of the Notes and the ~~Indenture, provide a fair summary of such provisions;~~ Conversion Shares and the ~~statements set forth~~ consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificate of incorporation or bylaws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties or assets; and, except as may be required by the securities or "blue sky" laws of any state of the United States in connection with the sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company and the issuance of the Notes and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby; (vii) No registration of the Notes or the Conversion Shares under the ~~heading “~~Securities Act, and no qualification of the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Notes or in connection with the conversion of the Notes into Conversion Shares, in each case, in the manner contemplated by the Offering Memorandum, this Agreement and the Indenture; (viii) The statements in the Offering Memorandum under the caption "Certain United States Federal Income Tax ~~Consequences” in the Final Memorandum~~Considerations", insofar as ~~such statements~~ they purport to constitute ~~a summary~~ summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material respects ~~as would be~~ to the extent required ~~to be disclosed~~ if such statements were contained in a ~~prospectus pursuant to~~ registration statement on Form S-3 under the ~~Act and the Exchange Act and the respective rules and regulations thereunder~~Securities Act; (ivix) The Company is not an "investment company" within the ~~execution and delivery~~ meaning of ~~this Agreement have been duly authorized by~~ the Investment Company Act of 1940, as amended; (x) The Company has all necessary corporate ~~action~~ right, power and authority to execute and deliver each of the ~~Company~~ Operative Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Notes and the Conversion Shares to the Initial Purchasers; (xi) This Agreement has been duly authorized, executed and delivered by the Company; (vxii) ~~the execution and delivery of the~~ The Indenture ~~have~~ has been duly ~~authorized by the Company and~~authorized, ~~when duly~~ executed and delivered by the Company (and, assuming ~~the~~ due authorization, execution and delivery thereof by the Trustee), ~~the Indenture will be~~ constitutes a ~~legal,~~ legally valid and binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its terms ~~(subject~~except as the enforceability thereof may be limited by bankruptcy, ~~as to enforcement of remedies~~insolvency, ~~to applicable bankruptcy~~fraudulent transfer, reorganization, ~~insolvency,~~ moratorium and other similar laws relating to or ~~other laws~~ affecting creditors’ ' rights ~~generally from time~~ generally, subject to ~~time~~ general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in ~~effect). The Indenture meets the requirements for qualification under the TIA.~~a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing; (vixiii) ~~the Notes have~~ The Registration Rights Agreement has been duly ~~authorized by all necessary corporate action of the Company and~~authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), ~~will be~~ constitutes a ~~legal,~~ valid and legally binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its terms ~~(subject,~~ except as ~~to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any~~ rights to indemnity ~~or contribution thereunder~~ contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), by an implied covenant of good faith and fair dealing; and (xiv) The Notes have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and the Delaware General Corporation Law and may state ~~securities laws~~ that it is relying, in respect of matters of New York law, upon Brown & Wood LLP, and in respect of matters of fact, upon certificates of officers of the Company, PROVIDED that such counsel shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with officers and other representatives of the Company, the Company's independent public ~~policy considerations~~accountants, the Initial Purchasers and their counsel, at which the contents of the Offering Memorandum were discussed, and while such counsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (other than the financial statements, financial and statistical data and supporting schedules as to which such counsel shall make no statement), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (ixd) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel and Secretary of the ~~execution~~ Company, shall have furnished to the Initial Purchasers his written opinion, addressed to the Initial Purchasers and ~~delivery by~~ dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that: (i) The authorized, issued and outstanding capital stock of the Company, as of June 30, 2000, is as set forth in the Offering Memorandum under the column entitled "Actual" under the caption "Capitalization", and all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable; (ii) Except as disclosed in the Offering Memorandum, there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, ~~and the performance by~~ any shares of Common Stock pursuant to any agreement or other instrument to which the Company is a party known to such counsel; the issuance of ~~its obligations under~~the Conversion Shares, upon conversion of the Notes in accordance with the terms of the Indenture, will not be subject to the preemptive or other similar rights of any securityholder of the Company and (iii) The execution, delivery and performance of this ~~Agreement, the Registration Rights~~ Agreement, the Indenture and the ~~Notes,~~ Registration Rights Agreement and the ~~Exchange~~ issuance of the Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Conversion Shares and the consummation of the ~~other~~ transactions ~~herein~~ contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms ~~and~~ or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, ~~lease~~ loan agreement or other ~~material~~ agreement or ~~instrument,~~ instrument known to such ~~counsel,~~ counsel to which the Company ~~or any of its significant subsidiaries~~ is a party or by which the Company is bound or to which any of ~~its significant subsidiaries~~ the property or ~~any of their respective properties are bound, or the charter documents or by-laws~~ assets of the Company ~~or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such~~ is subject. Such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes shall also have furnished to the Initial Purchasers ~~as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement~~a written statement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes addressed to the Initial Purchasers and ~~the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any~~ dated such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that he has no reason to believe that the statements under the captions "Risk Factors--Our patents may not protect our products and our products may infringe on third-party patent rights" and "Patents and Proprietary Rights" in the Offering Memorandum, as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (e) Brown & Wood LLP, shall have furnished to the Initial Purchasers their written opinion, as counsel ~~for~~ to the Initial Purchasers, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers. (df) With respect to the letter of ▇▇▇▇▇ & Young LLP delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter. (g) The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers at on such Delivery Date a certificate, dated such Delivery Date and delivered on behalf of the ~~Closing a certificate~~ Company by one of its ~~Chairman of the Board, its President or its Chief Executive Officer~~ co-chief executive officers and its ~~Chief Financial Officer~~ chief financial officer, in form and substance satisfactory to the Initial ~~Purchasers~~ Purchasers, to the effect that: (i) ~~the representations~~ The representations, warranties and ~~warranties~~ agreements of the Company in ~~this Agreement~~ Section 1 are true and correct as ~~if made on~~ of the date given and as of ~~the Closing~~ such Delivery Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory complied in all material respects with all its agreements contained herein to ~~the Initial Purchasers and counsel for the Initial Purchasers.~~ be performed prior to or on such Delivery Date; (A) The Company ~~shall furnish to~~ has not sustained since the ~~Initial Purchasers such conformed copies~~ date of ~~such opinions, certificates, letters, and documents in such quantities as~~ the ~~Initial Purchasers shall reasonably request.~~latest audited

Appears in 1 contract

Sources: Purchase Agreement (Inhale Therapeutic Systems Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Notes ~~shall, be subject, in~~ on the ~~Initial Purchasers’ sole discretion,~~ Closing Date is subject to the ~~accuracy~~ accuracy, as of the Closing Date, of the representations and warranties of ~~the Company~~ LNR contained ~~herein as of the date hereof~~ herein, and ~~as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof,~~ to the performance by ~~the Company~~ LNR of its covenants and ~~agreements~~ obligations hereunder and to the following additional ~~conditions:~~conditions (any of which may be waived in writing by the Initial Purchaser): (a) On the Closing ~~Date,~~ Date the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ the opinions, dated as of the Closing Date and addressed to the Initial Purchaser (and stating that it may be relied upon by counsel to the Initial Purchaser), of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for LNR, and Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP, special counsel to certain Designated Subsidiaries and the ~~Company~~Land Partnership, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, to the effect that: (i) ~~such counsel has no reason to believe that (other than~~ Each of LNR, the ~~financial statements~~ Designated Subsidiaries and ~~other financial information contained therein~~the Land Partnerships is duly organized, validly existing and, as to ~~which such counsel need express no opinion)~~ LNR and the ~~Final Memorandum~~Designated Subsidiaries that are corporations, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ organization and, has all requisite corporate or other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the ~~Final~~ Memorandum. Each of LNR, the Designated Subsidiaries and the ~~Company~~ Land Partnerships is duly qualified to do business and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification and where LNR has ~~corporate power to enter into this Agreement,~~ informed such counsel the ~~Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes~~ failure to be ~~carried out by it~~so qualified would, individually or in the aggregate, have a Material Adverse Effect. (ii) LNR has the authorized capital stock as set forth under "Capitalization" in the Memorandum; all of the outstanding shares of Common Stock and Class B Common Stock of LNR and the capital stock of each Designated Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and were not issued ~~and~~ in violation of any preemptive or similar rights; all of the outstanding shares of capital stock of ~~each of~~ the ~~Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum,~~ Designated Subsidiaries are owned ~~beneficially~~ by ~~the Company~~ LNR or another Subsidiary, insofar as such counsel is aware, free and clear of ~~any perfected security interests or,~~ all liens (other than those created pursuant to the ~~best knowledge~~ Credit Agreement), encumbrances, equities and claims or restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of certain jurisdictions) or voting; LNR indirectly owns a 50% interest in each Land Partnership; such ~~counsel~~interest in each Land Partnership has been duly authorized and validly issued and is, ~~any other security interests~~insofar as such counsel is aware, free and clear of all liens, encumbrances, equities or and claims~~, except for pledges of subsidiary stock under debt instruments;~~. (iii) ~~the statements~~ Insofar as such counsel is aware, except as set forth ~~under the heading “Description of Notes”~~ in the ~~Final~~ Memorandum or in a document incorporated by reference into the Memorandum, ~~insofar as~~ (A) there are no outstanding options, warrants or other rights to purchase from LNR or any Designated Subsidiary or either Land Partnership shares of capital stock or ownership interests in LNR or any Designated Subsidiary or ownership interests in either Land Partnership, (B) other than LNR's Class B Common Stock, there are no outstanding agreements or other obligations of LNR or any Designated Subsidiary to issue, or other rights to cause LNR or any Designated Subsidiary or either Land Partnership to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in LNR or any Designated Subsidiary or ownership interests in either Land Partnership and (C) no holder of securities of LNR or any Designated Subsidiary (other than the Notes) is entitled to have such ~~statements purport to summarize certain provisions of the Notes and the Indenture, provide~~ securities registered under a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed registration statement filed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;LNR. (iv) LNR has all requisite corporate power and authority to execute, deliver and perform its obligations under the ~~execution and delivery of this Agreement have been duly authorized by all necessary corporate action of~~ Notes, the ~~Company~~ Exchange Notes, the Private Exchange Notes, the Indenture and the ~~Agreement~~ Registration Rights Agreement. (v) The Indenture is in sufficient form for qualification under the Trust Indenture Act; the Indenture has been duly and validly authorized, executed and delivered by ~~the Company; (v) the execution~~ LNR, and ~~delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company~~ (assuming the due authorization, execution and delivery ~~thereof~~ of the Indenture by the Trustee), ) constitutes the ~~Indenture will be a legal,~~ valid and legally binding agreement of ~~the Company~~LNR, enforceable against ~~the Company~~ LNR in accordance with its ~~terms~~ terms, except to the extent that the enforcement thereof may be affected by (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in ~~effect~~a proceeding in equity or at law)~~. The Indenture meets the requirements for qualification under the TIA~~. (vi) The Notes are in the form contemplated by the Indenture. The Notes have each been duly ~~authorized by all necessary corporate action of the Company and~~and validly authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by ~~the Company~~ LNR and, when paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of ~~the Company~~LNR, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder~~ , and enforceable against LNR in accordance with their terms, except to the extent that the enforcement thereof may be affected by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of ~~securities~~ equity and the discretion of the ~~Company has~~ court before which any ~~right which has not been fully exercised~~ proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;at law). (vii) ~~the~~ The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by ~~the Company,~~ LNR and when ~~the Exchange Notes and the Private Exchange Notes are duly~~ executed and delivered by LNR, the ~~Company in accordance with the terms of~~ exchange transactions described in, or as otherwise contemplated by the Registration Rights Agreement ~~and the Indenture~~ (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of LNR, entitled to the ~~Company~~benefits of the Indenture, and enforceable against LNR in accordance with their ~~terms~~ terms, except to the extent that the enforcement thereof may be affected by (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in ~~effect~~a proceeding in equity or at law). (viii) The Registration Rights Agreement has been duly and validly authorized, executed and delivered by LNR, and (assuming due authorization, execution and delivery thereof by the ~~Company~~ Initial Purchaser) constitutes the valid and legally binding agreement of LNR enforceable against LNR in accordance with its terms, except to the extent that (A) the enforcement thereof may be affected by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal or state securities laws or public policy considerations. (ix) LNR has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the ~~Registration Rights Agreement~~transactions contemplated hereby; this Agreement and the ~~Registration Rights~~ consummation by LNR of the transactions contemplated hereby have been duly and validly authorized by LNR. This Agreement has been ~~duly authorized by the Company and, when~~ duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations)LNR. (ixx) The Indenture, the ~~execution~~ Notes and ~~delivery~~ the Registration Rights Agreement conform as to legal matters in all material respects to the descriptions thereof contained or incorporated by reference in the ~~Company of~~Memorandum. (xi) Insofar as such counsel is aware there are (i) no legal or governmental proceedings pending or threatened to which LNR or any Designated Subsidiary or either Land Partnership is a party or to which the property or assets of LNR or any Designated Subsidiary or either Land Partnership is subject which would be required under the Act to be described in a registration statement under the Act or in a prospectus meeting the requirements of Section 10 of the Act, and are not described in the ~~performance~~ Memorandum, or which seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Memorandum and (ii) no contracts, agreements or other documents to which LNR or any Designated Subsidiary or either Land Partnership is a party which would be required under the Act to be described in a registration statement or prospectus and are not described in the Memorandum. The descriptions contained or incorporated by reference in the ~~Company~~ Memorandum of ~~its obligations under, this~~ the Credit Agreement, the ~~Registration Rights~~ partnership agreements of each of the Land Partnerships, the separation and distribution agreement relating to the spin-off of LNR and the By-Laws of LNR are accurate in all material respects and fairly summarize the provisions of such agreements and documents which they purport to summarize. (xii) Insofar as such counsel is aware, neither LNR nor any Designated Subsidiary is in violation of its certificate of incorporation or bylaws or other comparable organizational documents and neither Land Partnership is in violation of the partnership agreement under which it was formed. (xiii) The execution, delivery and performance of this Agreement, the Indenture and the ~~Notes~~Registration Rights Agreement, and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the ~~Exchange Notes and the Private Exchange Notes, the issuance, offering~~ issuance and sale of the Notes to the Initial ~~Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement~~ Purchaser) and the consummation of the ~~other transactions herein contemplated do~~ Debt Tender Offer will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a lien on any property or assets of LNR or any Subsidiary or Investment Affiliate with respect to (i) the terms or provisions of any of the terms ~~and~~ or provisions ofof any material contract, ~~or constitute a default under, any indenture, mortgage, deed of trust, lease or other material~~ agreement or ~~instrument, known to~~ instrument of which such ~~counsel,~~ counsel is aware to which ~~the Company~~ LNR or any ~~of its significant subsidiaries~~ Designated Subsidiary or either Land Partnership is a party or by which ~~the Company~~ LNR or any Designated Subsidiary or either Land Partnership may be bound, (ii) the certificate of ~~its significant subsidiaries~~ incorporation or bylaws or other comparable organizational documents of LNR or any Designated Subsidiary or the partnership agreement of ~~their respective properties are bound~~either Land Partnership, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the ~~charter documents or by-laws~~ accuracy of the ~~Company or~~ representations and warranties of the Initial Purchaser in Section 8 hereof) any ~~of its significant subsidiaries~~statute, ~~or any statute or any~~ judgment, decree, order, rule or regulation generally applicable to transactions of ~~any court~~ the type contemplated by the Memorandum or ~~other governmental authority or any arbitrator~~ known to such counsel ~~and~~ to be applicable to ~~the Company~~ LNR or ~~its significant subsidiaries;~~any Designated Subsidiary or either Land Partnership. (xxiv) No consent, approval, authorization or order of any governmental authority is required for the ~~Company is not an “investment company” and, after giving effect to the Offering~~ issuance and sale by LNR of the Notes to the Initial Purchaser, or the other transactions contemplated in this Agreement or the consummation of the Debt Tender Offer, except (i) as may be required under applicable securities laws in connection with the registration under the Act of the Notes, and the Private Exchange Notes, if applicable, pursuant to the Registration Rights Agreement and (ii) as may be required under state securities or blue sky laws (as to which such counsel need express no opinion). (xv) Neither LNR nor any of its subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds ~~therefrom~~from such sale (as described in the Memorandum under the caption "Use of Proceeds") will be, ~~will not be~~ an “"investment company”, " as such term is defined in the ~~1940~~ Investment Company Act~~; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which~~ , and the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumrules and regulations thereunder. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiiixvi) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial ~~Purchasers~~ Purchaser as contemplated by this Agreement and the ~~Final~~ Memorandum or in connection with the initial resale of the Notes by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the ~~TIA~~Trust Indenture Act, in each case assuming (i~~) (A~~) that the purchasers who buy such Notes in the initial resale thereof are ~~qualified institutional buyers~~ Qualified Institutional Buyers or Accredited Investors, as those terms are defined in ~~Rule 144A promulgated~~ the rules under the ~~Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S~~Act, (ii) the accuracy of the Initial ~~Purchasers’~~ Purchaser's representations in Section 8 and those of ~~the Company~~ LNR contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial ~~Purchasers~~ Purchaser and the initial resale thereof and (iii) the due performance by the Initial ~~Purchasers~~ Purchaser of the agreements set forth in Section 8 ~~hereof~~hereof and the offering and transfer procedures set forth in the Memorandum. (xvii) Neither the sale, issuance, execution or delivery of the Notes nor any other transaction contemplated by this Agreement will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. (xviii) The statements under the captions "Description of the Notes," "Exchange Offer; Registration Rights" and "Notice to Investors; Transfer Restrictions" in the Memorandum or incorporated therein by reference, insofar as such statements constitute a summary of the documents referred to therein or matters of law, provide a fair and accurate summary in all material respects of the information called for with respect to such documents and matters under current law. At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇▇ Chance US LLP shall additionally state that it has participated in conferences with officers and other representatives of LNR, representatives of the independent public accountants for LNR, representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which conferences the contents of the Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Memorandum (except to the extent specified in subsection 7(a)(xviii)), no facts have come to its attention which lead it to believe that the Memorandum, on the date thereof or at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (it being understood that such firm need express no belief with respect to the financial statements and related notes thereto and the other financial or statistical data included in the Memorandum). In rendering ~~any such~~ its opinion, ~~such counsel~~ ▇▇▇▇▇▇▇▇ Chance US LLP may ~~rely,~~ state that they express no opinion as to ~~matters of fact, to~~ the ~~extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of~~ laws of any jurisdiction other than the federal laws of the United States, the laws of the State of New York ~~or the United States or~~ and the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇~~▇ &~~ ▇▇▇▇▇▇▇ LLP, counsel for the Initial ~~Purchasers, dated the Closing Date~~Purchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.m

Appears in 1 contract

Sources: Purchase Agreement (LNR Property Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Representative on behalf of the several Initial Purchasers to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject~~subject to the accuracy, in ~~the Initial Purchasers’ sole discretion~~all material respects, ~~to the accuracy~~ of the representations and warranties of the Company ~~contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~herein, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~performance, ~~to the performance~~ in all material respects, by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Commercial Loans shall have been delivered to the Indenture Trustee pursuant to the Sale and Servicing Agreement. (b) The Initial Purchasers shall have received a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company~~certificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that: , to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has ~~no reason~~ complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion)~~ the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or ~~the date of such opinion, included~~ any Additional Offering Document contained or ~~includes any~~ contains an untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) The Class A-1 Notes and the ~~Company and~~ Class A-2 Notes shall each ~~of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ have been ~~duly organized~~ rated no less than “Aaa” by ▇▇▇▇▇’▇, “AAA” by S&P, and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than “Aa2” by ▇▇▇▇▇’▇, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by ▇▇▇▇▇’▇, “A” by S&P and “A” by Fitch, the Class D Notes shall have been rated no less than “Baa2” by ▇▇▇▇▇’▇, “BBB” by S&P and “BBB” by Fitch and the Class E Notes shall have been rated no less than “Ba2” by ▇▇▇▇▇’▇, “BB” by S&P and “BB” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the ~~Company pursuant~~ date of delivery thereof, in form and substance satisfactory to ~~this Agreement,~~ the ~~compliance by the Company with the other provisions of this Agreement and the consummation~~ Representative on behalf of the ~~other transactions herein contemplated do not (x) require the consent~~Initial Purchasers, ~~approval, authorization, registration or qualification of or~~ with ~~any governmental authority, except such as have been obtained or made (~~respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) ~~commencing with~~ Initial Purchasers shall have received an opinion, dated the ~~Company’s taxable year ended December 31~~Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of ~~operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes~~ in-house counsel to the ~~Initial Purchasers as contemplated by this Agreement~~ Indenture Trustee, in form and ~~the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior~~ substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (bf) The Initial Purchasers shall have received a legal opinions of Dechert LLP, counsel to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of the Initial Purchasers and (ii) with respect to certain “true sale” and “non–consolidation” issues in form and substance satisfactory to the Representative on behalf of the Initial Purchasers. (g) The Initial Purchasers shall have received an opinion ~~from~~ of Dechert LLP, counsel to the Company and the Trust Depositor, with respect to certain “perfection issues” in form and substance satisfactory to the Representative on behalf of the Initial Purchasers. (h) The Initial Purchasers shall have received opinions of ▇▇▇▇▇▇ ▇▇▇▇▇~~▇ & ▇▇▇▇~~▇▇▇ LLP, counsel ~~for~~ to the ~~Initial Purchasers, dated~~ Owner Trustee and the ~~Closing Date~~Trust, with respect to certain ~~legal~~ trust matters ~~relating~~ and with respect to ~~this Agreement~~ certain “perfection issues,” in each case in form and ~~such other related matters as~~ substance satisfactory to the Representative on behalf of the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersPurchasers. (ci) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Indenture Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Indenture Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and its counsel ~~for the Initial Purchasers. The Company shall furnish to the Initial Purchasers~~ such ~~conformed copies of such opinions~~further information, ~~certificates, letters,~~ certificates and documents ~~in such quantities~~ as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel. (l) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Sources: Purchase Agreement (NewStar Financial, Inc.)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the ~~Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ Units under this Agreement is subject to the ~~accuracy~~ satisfaction of each of the following conditions: (a) All the representations and warranties of Holdings and the ~~Company~~ Selling Securityholders contained ~~herein as of~~ in this Agreement shall be true and correct on the ~~date hereof~~ Closing Date with the same force and ~~as of each Closing Date,~~ effect as if made on and as of ~~each~~ the Closing Date. Holdings shall have performed or complied with all of the agreements and satisfied all conditions to be performed, complied with or satisfied by it under this Agreement on or prior to the Closing Date. (1) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchaser not later than 9:00 a.m., New York City time, on the second business day following the date of this Agreement, or at such later date and time as the Initial Purchaser may approve in writing; (2) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Units or the sale of the Holdings Preferred Stock or the Holdings Subordinated Notes; and (3) at the Closing Date, to (i) no stop order preventing the ~~accuracy~~ use of the ~~statements~~ Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of the ~~Company’s officers made~~ Securities for sale in any jurisdiction designated by the Initial Purchaser pursuant to ~~the provisions hereof~~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 ~~performance by~~ knowledge of Holdings be contemplated. (1) Since the date of the latest balance sheet included in the Offering Documents, there shall not have been any event that had a Material Adverse Effect, or any development involving a prospective change that would be reasonably likely to have a Material Adverse Effect, whether or not arising in the ordinary course of business; (2) since the date of the latest balance sheet included in the Offering Documents, there has not been any change, or any development involving a prospective change, in the capital stock or in the long- term debt of Holdings or the Company ~~of its covenants and agreements hereunder and to~~ from that set forth in the ~~following additional conditions:~~Offering Documents; (a3) On neither Holdings nor the Company shall have material liability or obligation, direct or contingent, other than those reflected in the Offering Memorandum; and (4) on the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received a ~~legal~~ certificate dated the Closing Date, signed on behalf of Holdings by the undersigned officers of Holdings, confirming all matters set forth in Sections 9(a), (b), and (c) hereof. (d) The Initial Purchaser shall have received on the Closing Date an opinion ~~from~~ (satisfactory to the Initial Purchaser and counsel to the Initial Purchaser) dated the Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇ ~~Chance US LLP~~& ▇▇▇▇▇, counsel for ~~the Company, dated the Closing Date~~Holdings, to the effect that: (i1) ~~such counsel~~ Holdings has ~~no reason~~ all necessary corporate power and authority to ~~believe that (other than~~ enter into and perform its obligations under the ~~financial statements~~ Operative Documents and ~~other financial information contained therein~~to issue, as sell and deliver the Units to ~~which such counsel need express no opinion)~~ the ~~Final Memorandum, as of its date or~~ Initial Purchaser to be sold by the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.Initial Purchaser pursuant hereto; (ii2) ~~the~~ The Company and each of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of Selling Securityholders has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full necessary power and authority to ~~own~~enter into and perform its obligations under this Agreement; (3) No consent, ~~lease~~ approval, authorization or order of, or filing or registration with, any regulatory body, administrative agency, or other governmental agency (except as securities or Blue Sky laws of the various states may require) which has not been made or obtained is required for the execution, delivery and ~~operate their respective properties~~ performance of the Operative Documents and ~~assets~~ the valid issuance and ~~conduct their respective businesses~~ sale of the Securities to the Initial Purchaser as ~~described~~ contemplated by this Agreement or the offering of the Securities as contemplated by the Offering Memorandum, except where the failure to obtain any such consents or waivers, individually or in the ~~Final Memorandum~~aggregate, would not be reasonably likely to have a Material Adverse Effect or adversely effect the ability to consummate the Offering; (4) To the best of such counsel's knowledge, no consents or waivers from any person are required to consummate the transactions contemplated by the Operative Documents or the Offering Documents other than such consents and waivers as have been or will be obtained; (5) This Agreement has been duly authorized and validly executed by each of Holdings, the Company and the Selling Securityholders and (assuming the due execution and delivery thereof by the Initial Purchaser) is a legally valid and binding obligation of each of Holdings, the Company and the Selling Securityholders, enforceable against each of them in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally, (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity) and (iii) limited by securities laws prohibiting or limiting the availability of, and public policy against, indemnification or contribution; (6) The Units have been duly and validly authorized by Holdings and, when issued in accordance with their terms and delivered to and paid for by the ~~Company has corporate power to enter into~~ Initial Purchaser in accordance with the terms of this Agreement, the ~~Registration Rights Agreement~~ Units will conform to the description thereof in the Offering Memorandum, and ~~the Indenture~~ will be legally valid and ~~to carry out all the terms and provisions hereof and thereof and~~ binding obligations of ~~the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries~~Holdings, enforceable against Holdings in accordance with their terms, except as ~~otherwise~~ the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally, (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity) and (iii) limited by securities laws prohibiting or limiting the availability of, and public policy against, indemnification or contribution; (7) The Holdings Preferred Stock has been duly authorized and is full paid, nonassessable and entitled to the rights, priviledges and preferences set forth in the ~~Final~~ Certificate of Designations. The Holdings Preferred Stock conforms with the description thereof contained in the Offering Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;. (~~iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum~~8) Holdings has duly authorized, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the ~~Company; (v) the execution~~ Subordinated Note Indenture, and ~~delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company~~ (assuming the due authorization, execution and delivery thereof by the Trustee), ) the Subordinated Note Indenture ~~will be~~ is a ~~legal,~~ legally valid and binding ~~agreement~~ obligation of ~~the Company~~Holdings, enforceable against ~~the Company~~ Holdings in accordance with its ~~terms~~ terms, except as the enforceability thereof may be (~~subject, as to enforcement of remedies,~~ i) subject to applicable bankruptcy, ~~reorganization,~~ insolvency, ~~moratorium~~ moratorium, reorganization or ~~other~~ similar laws ~~affecting creditors’~~ in effect which affect the enforcement of creditors rights generally ~~from time to time~~ and (ii) limited by general principles of equity (whether considered in ~~effect~~a proceeding at law or in equity)~~. The Indenture meets the requirements for qualification under the TIA.~~; (vi9) ~~the~~ The Holdings Subordinated Notes have been duly ~~authorized by all necessary corporate action of~~ authorized, issued and authenticated in accordance with the ~~Company and~~Subordinated Note Indenture and conform to the description thereof in the Offering Memorandum, on and ~~as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal,~~ are legally valid and binding obligations of ~~the Company~~Holdings, enforceable against Holdings in accordance with their ~~terms~~ terms, except as the enforceable thereof may be (~~subject, as to enforcement of remedies,~~ i) subject to applicable bankruptcy, ~~reorganization~~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) Holdings has duly authorized, executed and delivered the Indenture, and (assuming due authorization, execution and delivery thereof by the Trustee) the Indenture is a legally valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, ~~moratorium~~ moratorium, reorganization or ~~other~~ similar laws ~~affecting creditors’~~ in effect which affect the enforcement of creditors rights generally ~~from time to time~~ and (ii) limited by general principles of equity (whether considered in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement a proceeding at law or in ~~the Exchange Offer contemplated by the Registration Rights Agreement~~equity); (~~vii~~11) ~~the Exchange Notes and the Private Exchange Notes have been~~ Holdings has duly authorized by the ~~Company~~Series A Notes and, when issued and authenticated in accordance with the terms of the Indenture and delivered in exchange for the Units in accordance with the terms of such Units, the Series A Notes will conform to the description thereof in the Offering Memorandum, and will be the legally valid and binding obligations of Holdings, enforceable against Holdings in accordance with their terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally and (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity); (12) Holdings has duly authorized the Series B Notes and, when ~~the Exchange Notes~~ issued and ~~the Private Exchange Notes are duly executed and delivered by the Company~~ authenticated in accordance with the terms of the Registration Rights Agreement and the ~~Indenture (assuming~~ Indenture, the ~~due authorization~~Series B Notes will conform to the description thereof in the Offering Memorandum, ~~execution~~ and ~~delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture),~~ will be the ~~legal,~~ legally valid and binding obligations of ~~the Company~~Holdings, enforceable against Holdings in accordance with their ~~terms~~ terms, except as the enforceability thereof may be (~~subject, as to enforcement of remedies,~~ i) subject to applicable bankruptcy, ~~reorganization,~~ insolvency, ~~moratorium~~ moratorium, reorganization or ~~other~~ similar laws ~~affecting creditors’~~ in effect which affect the enforcement of creditors rights generally ~~from time to time~~ and (ii) limited by general principles of equity (whether considered in ~~effect~~a proceeding at law or in equity).; (~~viii~~13) ~~the Company~~ Holdings has ~~all requisite corporate power~~ duly authorized, executed and ~~authority to execute, deliver and perform its obligations under~~ delivered the Registration Rights Agreement~~; the Registration Rights Agreement has been duly authorized by the Company and~~, ~~when duly executed~~ and ~~delivered by the Company~~ (assuming the due ~~authorization,~~ execution and delivery thereof by the Initial ~~Purchasers), will be~~ Purchaser) the Registration Rights Agreement is a ~~legal,~~ legally valid and binding ~~agreement~~ obligation of ~~the Company~~Holdings, enforceable against ~~the Company~~ Holdings in accordance with its ~~terms~~ terms, except as the enforceability thereof may be (~~subject, as to enforcement of remedies,~~ i) subject to applicable bankruptcy, ~~reorganization,~~ insolvency, ~~moratorium~~ moratorium, reorganization or ~~other~~ similar laws ~~affecting creditors’ rights generally from time to time~~ in effect ~~and except that any~~ which affect the enforcement of creditors rights ~~to indemnity or contribution thereunder may be~~ generally, (ii) limited by ~~federal~~ general principles of equity (whether considered in a proceeding at law or in equity) and ~~state~~ (iii) limited by securities laws prohibiting or limiting the availability of, and public policy ~~considerations).~~against, indemnification or contribution; (ix14) The statements under the ~~execution~~ captions "Certain Transactions," "Description of Units," "Description of Exchange Notes," "Description of Capital Stock," "Description of Certain Indebtedness," and ~~delivery by~~ "Certain U.S. Federal Income Tax Considerations" in the Offering Memorandum, insofar as such statements constitute a summary of legal matters, documents or proceedings referred to therein, are correct in all material respects; (15) Neither Holdings nor the Company ~~of, and~~ is an "investment company" or a company "controlled" by an "investment company" within the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale meaning of the ~~Notes to~~ Investment Company Act of 1940, as amended; (16) When the ~~Initial Purchasers by the Company~~ Units are issued and delivered pursuant to this Agreement, such Units, the ~~compliance by the Company with the other provisions of this Agreement~~ Holdings Preferred Stock and the ~~consummation~~ Holdings Subordinated Notes will not be of the ~~other transactions herein contemplated do not~~ same class (xwithin the meaning of Rule 144A under the Act) ~~require the consent, approval, authorization, registration or qualification~~ as securities of ~~or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the~~ Holdings that are listed on a national securities ~~or Blue Sky laws~~ exchange registered under Section 6 of the ~~various states of the~~ Exchange Act or that are quoted in a United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiariesautomated inter- dealer quotation system; (x17) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the The Subordinated Note Indenture is not required to be qualified under the ~~TIA, in each case~~ Trust Indenture Act; (18) The Indenture is not required to be qualified under the Trust Indenture Act prior to the first to occur of (i) the Registered Exchange Offer and (ii) the effectiveness of the Shelf Registration Statement; (19) No registration under the Act of the Units is required for the sale of the Units to the Initial Purchaser as contemplated hereby or for the Exempt Resales (assuming (i) ~~(A)~~ that the ~~purchasers~~ Eligible Purchasers who buy ~~such Notes~~ the Units in the ~~initial resale thereof~~ Exempt Resales are ~~qualified institutional buyers as defined in Rule 144A promulgated under~~ QIBs or a non-U.S. person outside the ~~Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S,~~ United States and (ii) the accuracy of, and compliance with, the representations of the Initial ~~Purchasers’ representations in Section 8~~ Purchaser and those of Holdings and the ~~Company~~ Selling Securityholders contained in ~~this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers~~ Sections 6, 7 and ~~the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section~~ 8 hereof. In ~~rendering any such opinion~~addition, such counsel ~~may rely~~shall state that it has participated in conferences with officers and other representatives of Holdings, representatives of the independent public accountants for Holdings, the Initial Purchaser's representatives and counsel for the Initial Purchaser, at which conferences the contents of the Offering Memorandum and related matters were discussed, and, although such counsel is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum, and have not made any independent check or verification thereof, during the course of such participation (relying as to ~~matters of fact,~~ materiality to the extent such counsel ~~deems proper~~deemed appropriate upon the statements of officers and other representatives of Holdings), ~~on certificates of responsible officers of~~ no facts came to such counsel's attention that caused such counsel to believe that the ~~Company and public officials and~~Offering Memorandum, as of its date, contained an untrue statement of material fact or omitted to ~~matters involving~~ state a material fact required to be stated therein or necessary to make the ~~application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware,~~ statements therein not misleading; it being understood that such counsel expresses no belief with respect to the ~~extent~~ financial statements, schedules and other financial and statistical data included in the Offering Memorandum or incorporated therein. (e) The Initial Purchaser shall have received on the Closing Date an opinion (satisfactory ~~in form and scope~~ to ~~counsel for~~ the Initial ~~Purchasers~~Purchaser and counsel to the Initial Purchaser) dated the Closing Date of Rose, ~~upon the opinion of~~ ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~▇, counsel for ~~the Initial Purchasers~~Holdings, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i1) Each of Holdings and the ~~representations~~ Company is a corporation duly organized, validly existing and ~~warranties~~ in good standing under the laws of its jurisdiction of incorporation, has full corporate power and authority to carry on its respective business as it is currently being conducted and to own, lease and operate its respective properties, and, to the best of such counsel's knowledge, is duly qualified and is in good standing as a foreign corporation registered to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not be reasonably likely to have a Material Adverse Effect; (2) All of the outstanding capital stock of Holdings has been duly authorized and validly issued and is fully paid and nonassessable and is not subject to preemptive or similar rights; (3) All of the outstanding capital stock of the Company has been duly authorized and validly issued and is fully paid and nonassessable, and is owned by Holdings free and clear of any Lien; (4) Neither Holdings nor the Company is in violation of its charter or bylaws, and, to the best knowledge of such counsel after due inquiry, neither Holdings nor the Company is in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other agreement, indenture or instrument material to the conduct of the business of Holdings or the Company, to which Holdings or the Company is a party or by which Holdings, the Company or their respective property is bound; (5) The execution, delivery and performance of the Operative Documents by Holdings, compliance by Holdings with the provisions thereof and the Securities, the execution, delivery and performance of this Agreement ~~are true~~ by the Company and ~~correct as if made on and as~~ the consummation of the ~~Closing Date;~~ transactions contemplated hereby and thereby does not conflict with or constitute a breach of any of the terms or provisions of, or a default under, or result in the imposition of a lien or encumbrance on any properties of Holdings or the Company, or an acceleration of indebtedness pursuant to, (1) the charter or bylaws of Holdings or the Company, (2) any bond, debenture, note, indenture, mortgage, deed of trust or other agreement or instrument known to such counsel after due inquiry to which Holdings or the Company ~~has performed all covenants and agreements and satisfied all conditions on its part to be performed~~ is a party or ~~satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of~~ by which ~~information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)~~Holdings, neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of ~~its subsidiaries~~their respective property is bound, ~~taken as a whole, except in each case as described in~~ or ~~contemplated by the Final Memorandum~~ (~~exclusive of any amendment or supplement thereto). (e~~3) ~~Subsequent~~ to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies best of such ~~opinions~~counsel's knowledge, ~~certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.~~any l

Appears in 1 contract

Sources: Purchase Agreement (Gfsi Holdings Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements hereunder~~ obligations hereunder, and to each of the following additional terms and conditions: (a) ~~On the Closing Date, the~~ No Initial ~~Purchasers~~ Purchaser shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date,~~ discovered and disclosed to the ~~effect that: (i)~~ Company prior to or on such ~~counsel has no reason to believe~~ Delivery Date that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date~~ Offering Memorandum or ~~the date of such opinion, included~~ any amendment or ~~includes~~ supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material ~~fact or omitted~~ or omits to state any fact which is material ~~fact~~ and necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and ~~each of its “significant subsidiaries”~~ information that they may reasonably request to enable them to pass upon such matters. (c) ▇▇▇▇▇▇ Godward LLP shall have furnished to the Initial Purchasers their written opinion, as ~~defined~~ counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in ~~Rule 1.02(w~~form and substance satisfactory to the Initial Purchasers, to the effect that: (i) ~~of Regulation S-X under the Exchange Act) have~~ The Company has been duly organized and ~~are~~ is validly existing as ~~corporations~~ a corporation in good standing under the laws of ~~their respective jurisdictions~~ the State of ~~incorporation and are~~ Delaware, and, based solely on certificates of public officials, is duly qualified to ~~transact~~ do business ~~as foreign corporations~~ and ~~are~~ is in good standing ~~under~~ as a foreign corporation in each jurisdiction in which its ownership or lease of property or the ~~laws~~ conduct of ~~all other jurisdictions~~ its business requires such qualification, except where ~~such counsel has been advised that~~ the failure to be so qualified would ~~amount to~~ not have a material ~~liability~~ adverse effect on the Company, whether or ~~disability to~~ not arising in the ~~Company~~ ordinary course of business, and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ has all corporate power and authority necessary to ~~own, lease and operate their respective~~ own or hold its properties and ~~assets and~~ conduct ~~their respective~~ the businesses in which it is engaged, as described in the ~~Final~~ Offering Memorandum; and, ~~and~~ to the knowledge of such counsel, the Company has no subsidiaries; (ii) the Conversion Shares, which are authorized on the date hereof, have been duly and validly authorized and reserved for issuance upon conversion of the Notes by all necessary corporate ~~power~~ action and are free of preemptive rights; all Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable and free and clear of all liens, encumbrances, equities or claims imposed by or arising from actions of the Company; (iii) The statements in the Offering Memorandum under the captions "Description of the Notes" and "Description of Capital Stock", insofar as they purport to ~~enter into~~ summarize the provisions of the Indenture, the Registration Rights Agreement, the Notes and the Common Stock (including the Conversion Shares) are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act; (iv) There is no restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company's certificate of incorporation or bylaws; (v) To the knowledge of such counsel and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company is a party or of which any property or asset of the Company is the subject which, if determined adversely to the Company might have a material adverse effect on the Company or which might reasonably be expected to materially and adversely affect the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder; to the actual knowledge of such counsel, no such proceedings are overtly threatened or contemplated by governmental authorities or, except as set forth or contemplated in the Offering Memorandum, overtly threatened by others; and, to the actual knowledge of such counsel, the aggregate of all pending legal or governmental proceedings to which the Company is a party or of which any of its property or assets is the subject (other than the Company's patent applications currently pending before the U.S. Patent and Trademark Office or before any foreign governmental authority that administers the registration of patents) which are not described in the Offering Memorandum, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a material adverse effect on the Company. (vi) The execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions issuance of the Notes and the ~~Indenture, provide a fair summary of such provisions;~~ Conversion Shares and the ~~statements set forth~~ consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificate of incorporation or bylaws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties or assets; and, except as may be required by the securities or "blue sky" laws of any state of the United States in connection with the sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company and the issuance of the Notes and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby; (vii) No registration of the Notes or the Conversion Shares under the ~~heading “~~Securities Act, and no qualification of the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Notes or in connection with the conversion of the Notes into Conversion Shares, in each case, in the manner contemplated by the Offering Memorandum, this Agreement and the Indenture; (viii) The statements in the Offering Memorandum under the caption "Certain United States Federal Income Tax ~~Consequences” in the Final Memorandum~~Considerations", insofar as ~~such statements~~ they purport to constitute ~~a summary~~ summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings matters described therein in all material respects ~~as would be~~ to the extent required ~~to be disclosed~~ if such statements were contained in a ~~prospectus pursuant to~~ registration statement on Form S-3 under the ~~Act and the Exchange Act and the respective rules and regulations thereunder~~Securities Act; (ivix) The Company is not an "investment company" within the ~~execution and delivery~~ meaning of ~~this Agreement have been duly authorized by~~ the Investment Company Act of 1940, as amended; (x) The Company has all necessary corporate ~~action~~ right, power and authority to execute and deliver each of the ~~Company~~ Operative Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Notes and the Conversion Shares to the Initial Purchasers; (xi) This Agreement has been duly authorized, executed and delivered by the Company; (vxii) ~~the execution and delivery of the~~ The Indenture ~~have~~ has been duly ~~authorized by the Company and~~authorized, ~~when duly~~ executed and delivered by the Company (and, assuming ~~the~~ due authorization, execution and delivery thereof by the Trustee), ~~the Indenture will be~~ constitutes a ~~legal,~~ legally valid and binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its terms ~~(subject~~except as the enforceability thereof may be limited by bankruptcy, ~~as to enforcement of remedies~~insolvency, ~~to applicable bankruptcy~~fraudulent transfer, reorganization, ~~insolvency,~~ moratorium and other similar laws relating to or ~~other laws~~ affecting creditors’ ' rights ~~generally from time~~ generally, subject to ~~time~~ general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in ~~effect). The Indenture meets the requirements for qualification under the TIA.~~a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing; (vixiii) ~~the Notes have~~ The Registration Rights Agreement has been duly ~~authorized by all necessary corporate action of the Company and~~authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), ~~will be~~ constitutes a ~~legal,~~ valid and legally binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its terms ~~(subject,~~ except as ~~to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any~~ rights to indemnity ~~or contribution thereunder~~ contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), by an implied covenant of good faith and fair dealing; and (xiv) The Notes have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and the Delaware General Corporation Law and may state ~~securities laws~~ that it is relying, in respect of matters of New York law, upon ▇▇▇▇▇ & Wood LLP, and in respect of matters of fact, upon certificates of officers of the Company, PROVIDED that such counsel shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with officers and other representatives of the Company, the Company's independent public ~~policy considerations~~accountants, the Initial Purchasers and their counsel, at which the contents of the Offering Memorandum were discussed, and while such counsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (other than the financial statements, financial and statistical data and supporting schedules as to which such counsel shall make no statement), as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (ixd) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel and Secretary of the ~~execution~~ Company, shall have furnished to the Initial Purchasers his written opinion, addressed to the Initial Purchasers and ~~delivery by~~ dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that: (i) The authorized, issued and outstanding capital stock of the Company, as of September 30, 1999, is as set forth in the Offering Memorandum under the column entitled "Actual" under the caption "Capitalization", and all of the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable; (ii) Except as disclosed in the Offering Memorandum, there are no preemptive or other rights to subscribe for or to purchase from the Company, or any restriction upon the voting or transfer of, ~~and the performance by~~ any shares of Common Stock pursuant to any agreement or other instrument to which the Company is a party known to such counsel; the issuance of ~~its obligations under~~the Conversion Shares, upon conversion of the Notes in accordance with the terms of the Indenture, will not be subject to the preemptive or other similar rights of any securityholder of the Company and (iii) The execution, delivery and performance of this ~~Agreement, the Registration Rights~~ Agreement, the Indenture and the ~~Notes,~~ Registration Rights Agreement and the ~~Exchange~~ issuance of the Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement Conversion Shares and the consummation of the ~~other~~ transactions ~~herein~~ contemplated hereby and thereby do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms ~~and~~ or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, ~~lease~~ loan agreement or other ~~material~~ agreement or ~~instrument,~~ instrument known to such ~~counsel,~~ counsel to which the Company ~~or any of its significant subsidiaries~~ is a party or by which the Company is bound or to which any of ~~its significant subsidiaries~~ the property or ~~any of their respective properties are bound, or the charter documents or by-laws~~ assets of the Company ~~or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such~~ is subject. Such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes shall also have furnished to the Initial Purchasers ~~as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement~~a written statement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes addressed to the Initial Purchasers and ~~the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any~~ dated such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to the Initial Purchasers, to the effect that he has no reason to believe that the statements under the captions "Risk Factors--Our patents may not protect our products and our products may infringe on third-party patent rights" and "Patents and Proprietary Rights" in the Offering Memorandum, as of its date or as of such Delivery Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (e) ▇▇▇▇▇ & Wood LLP, shall have furnished to the Initial Purchasers their written opinion, as counsel ~~for~~ to the Initial Purchasers, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers. (df) With respect to the letter of Ernst & Young LLP delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated such Delivery Date (i) confirming that they are independent accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter. (g) The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers at on such Delivery Date a certificate, dated such Delivery Date and delivered on behalf of the ~~Closing a certificate~~ Company by one of its ~~Chairman of the Board, its President or its Chief Executive Officer~~ co-chief executive officers and its ~~Chief Financial Officer~~ chief financial officer, in form and substance satisfactory to the Initial ~~Purchasers~~ Purchasers, to the effect that: (i) ~~the representations~~ The representations, warranties and ~~warranties~~ agreements of the Company in ~~this Agreement~~ Section 1 are true and correct as ~~if made on~~ of the date given and as of ~~the Closing~~ such Delivery Date; and the Company has ~~performed~~ complied in all ~~covenants and~~ material respects with all its agreements ~~and satisfied all conditions on its part~~ contained herein to be performed ~~or satisfied at or~~ prior to ~~the Closing~~ or on such Delivery Date~~; and~~; (ii) ~~subsequent to the respective dates as of which information is given in the Final Memorandum~~ (~~exclusive of any amendment or supplement thereto), neither the~~ A) The Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not ~~been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in~~ sustained since the ~~condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ date of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.late

Appears in 1 contract

Sources: Annual Report

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and again on the Closing Date as if made again on and as of such date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of ~~its covenants and agreements hereunder~~ their obligations hereunder, and to each of the following additional terms and conditions: (a) On The Offering Memorandum shall have been printed and copies made available to you not later than 5:00 p.m., New York City time, on the business day following the date of this Agreement, or at such later date and time as you may approve in writing. (b) No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the Closing ~~Date~~Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Latham & Watkins, counsel for the Initial ~~Purchasers shall have received a legal opinion from~~ Purchasers, is material o▇ ▇▇▇▇s t▇ ▇▇▇▇▇ ~~Chance US LLP~~a fact which, ~~counsel for~~ in the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date opinion of such ~~opinion~~counsel, ~~included or includes any untrue statement of a~~ is material ~~fact or omitted or omits to state any material fact~~ and necessary ~~in order~~ to make the statements ~~therein~~contained in the Offering Memorandum, in the light of the circumstances under which they were made, not misleading. (iic) ~~the Company~~ All corporate proceedings and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other ~~jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability~~ legal matters incident to the ~~Company~~ authorization, form and ~~its subsidiaries, taken as a whole; the Company and each~~ validity of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Series A Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this AgreementGuarantees, the Registration Rights Agreement, the Indenture and the ~~Notes~~Offering Memorandum, ~~the Exchange Notes~~ and ~~the Private Exchange Notes, the issuance, offering and sale of the Notes~~ all other legal matters relating to ~~the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of~~ this Agreement and the ~~consummation of the other~~ transactions ~~herein~~ contemplated ~~do not (x) require the consent~~hereby, ~~approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may~~ shall be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent reasonably satisfactory in ~~form and scope~~ all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) Skadden, Arps, Slate, Meagher & Flom (Illinois), special counsel to the ~~opinion~~ Company, and Dona▇▇ ▇. ▇ewi▇, ▇eneral Counsel of the Company, each shall have fu▇▇▇▇▇▇▇ ~~LLP. An opinion of~~ ▇~~▇▇▇~~▇ ▇▇▇ ~~LLP shall be delivered~~ Initial Purchasers their written opinions addressed to the Initial Purchasers and ~~counsel for~~ dated the Closing Date, in the form provided separately to the Initial Purchasers ~~covering matters reasonably requested~~ on the date hereof, with such changes, if any, as may be mutually agreed by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Dateparties. (be) The Initial Purchasers shall have received ~~a legal~~ from Latham & Watkins such opinion ~~from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers~~or opinions, dated the Closing Date, ~~with respect to certain legal matters relating to this Agreement~~ ▇▇▇▇ ▇esp▇▇▇ ▇▇ the issuance and ~~such~~ sale of the Series A Notes, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require~~. In rendering~~ . (f) The Company shall have entered into the Credit Facilities and other Credit Documents and the Initial Purchasers shall have received counterparts, conformed as executed, thereof, and the Company shall have borrowed such ~~opinion~~amounts thereunder as contemplated in the Offering Memorandum; provided, that if the proceeds from the issuance of the Series A Notes are to be placed into a secured proceeds account at the Closing Date, then such Credit Facility and other Credit Documents may be entered into on or prior to the closing of the Acquisition. (g) The Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof. (h) The Company and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof. (i) The Initial Purchasers shall have received from each of PricewaterhouseCoopers, LLP and PwC Deutsche Revision Aktiengesellschaft Wirtschaftsprufungsgesellschaft, independent certified public accountants, letters addressed to the Company or Schmalbach-Lubeca, as applicable, and Lehman Brothers Inc., Deutsch▇ ▇▇▇▇ ▇▇▇urities Inc., Banc of Americ▇ ▇▇▇▇rities LLC, Bank One Capital Markets, Inc., BNP Paribas Securities Corp., Dresdner Kleinwort Wasserstein-Grantchester, Inc., McDonald Investments Inc., SunTrust ▇▇▇▇▇▇▇ ▇▇~~▇▇▇▇ &~~ rkets, Inc. and Wells Fargo Brokerage Services, LLC, substantially in the form here▇▇▇▇▇~~▇▇ LLP shall have received~~ e approved by Lehman Brothers Inc., and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, dated the date hereof and the Closing Dat▇, (▇) confirming that they are independent accountants as required by the Securities Act and its Rules and Regulations or under the rules of the American Institute of Certified Public Accountants, as applicable, (ii) stating, as of the date of each letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five Business Days prior to the date of each letter), the procedures and findings of such firm with respect to the financial information and other matters covered by the letter delivered concurrently with this Agreement and (iii) with respect to the letter delivered on the Closing Date, confirming the procedures and findings set forth in ~~form and substance~~ the letter delivered concurrently with this Agreement; such letters shall be reasonably satisfactory to ~~counsel for the Initial Purchasers.~~Lehman Brothers Inc. (dj) The Company shall have furnished ~~or caused to be furnished to the~~ ▇▇ ▇▇e Initial Purchasers at a certificate, dated as of the Closing Date, of a ~~certificate of its Chairman of the Board, its~~ Vice President ~~or its Chief Executive Officer~~ and its Chief Financial Officer ~~satisfactory to the Initial Purchasers to the effect that:~~ or Treasurer stating that (i) the ~~representations~~ representations, warranties and ~~warranties~~ agreements of the Company (after giving effect to all materiality qualifiers therein) and the Guarantors in ~~this Agreement~~ Section 2 are true and correct as ~~if made on~~ of such Closing Date and as giving effect to the consummation of the ~~Closing Date~~transactions contemplated by the Acquisition Agreement, the Credit Documents and this Agreement; ~~and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and~~ (ii) ~~subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither~~ the Company ~~nor~~ and each Guarantor has complied in all material respects with all its agreements contained herein; and (iii) the conditions set forth in Sections 8(k) and 8(l) have been fulfilled. (k) None of the Company or any of its subsidiaries ~~has sustained~~ shall have sustained, since the date of the latest audited financial statements included in the Offering Memorandum, (i) any ~~material~~ loss or interference with ~~their respective businesses or properties~~ its business from fire, ~~flood~~explosion, ~~hurricane, accident~~ flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any legal~~ court or governmental ~~proceeding~~action, ~~and~~ order or decree, otherwise than as set forth or contemplated in the Offering Memorandum or (ii) since such date, there ~~has~~ shall not have been any ~~materially adverse change (including, without limitation, a~~ change in ~~management~~ the capital stock or ~~control~~long-term debt of the Company, any Material Adverse Effect otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), ~~or development involving a prospective materially adverse change~~is, in the ~~condition (financial or otherwise)~~reasonable, ~~management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ good faith judgment of the ~~Company~~ Initial Purchasers, so material and adverse as to make it impracticable or ~~any~~ inadvisable to proceed with the payment for and delivery of ~~its subsidiaries, taken as a whole, except~~ the Series A Notes being delivered on such Closing Date on the terms and in ~~each case as described~~ the manner contemplated in ~~or contemplated by~~ the ~~Final Memorandum (exclusive of any amendment or supplement thereto)~~Offering Memorandum. (el) Subsequent to the execution and delivery of this Agreement ~~and prior to the Closing Date, there~~ (i) no downgrading shall ~~not~~ have occurred ~~any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change,~~ in the rating accorded ~~any of~~ the Company’s 's debt securities by any “"nationally recognized statistical rating organization”, ," as ~~such~~ that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities. (fm) The ~~Indenture~~ Series A Notes shall have been ~~executed and delivered~~ designated for trading on the PORTAL Market; provided that the failure of the Series A Notes to be so listed shall not be due to any action taken or failure to act by ~~all~~ the ~~parties thereto~~Initial Purchasers. (gn) On If the proceeds from the issuance of the Series A Notes are to be placed into a secured proceeds account at the Closing Date, the Company shall have entered into a pledge, security and control agreement in a form reasonably satisfactory to Lehman Brothers. If such agreement is entered into, then on the Clo▇▇▇▇ ▇ate, Skadden, Arps, Slate, Meagher & Flom (Illinois), special counsel to the Company, shall ha▇▇ ▇▇▇▇ish▇▇ ▇o the Initial Purchasers its written opinion addressed to the Initial Purchasers as to the validity and perfection of the security interest created pursuant to such agreement and such other matters as the parties may mutually agree, such opinion to be in form and substance reasonably satisfactory to the Initial Purchasers. (o) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by federal or state authorities; (iii) the United States shall have become directly engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), in each case, as to make it, in the judgment of the Initial Purchasers, impracticable or inadvisable to proceed with offering or delivery of the Series A Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum. (p) At the Closing Date, the Company's existing credit facilities dated August 10, 1998 (the "Existing Credit Facilities") shall be repaid in full, or, if not, then either (1) the Company shall have secured an amendment, consent or waiver under the Existing Credit Facilities such that the issuance of the Series A Notes and the transactions contemplated hereby will not cause a breach of, or default under, the Existing Credit Facilities or (2) the Initial Purchasers shall have received an opinion of Skadden, Arps, Slate, Meagher & Flom (Illinois) stating that the ~~Registration Rights Agreement executed by~~ issuance of the ~~Company~~ Series A ▇▇▇▇▇ and ▇▇▇ transactions contemplated hereby will not cause a breach of, or default under, the Existing Credit Facilities, such ~~agreement shall~~ opinion to be in ~~full force~~ form and ~~effect at all times from and after~~ substance reasonably satisfactory to the ~~Closing Date. (h) On or before~~ Initial Purchasers. At the Closing Date, the ~~Initial Purchasers and counsel for~~ Company shall provide to the Initial Purchasers ~~shall have received such further certificates~~evidence reasonably satisfactory to them of the repayment of or amendment, ~~documents~~ consent or ~~other information as they may have reasonably requested from~~ waiver under the ~~Company~~Existing Credit Facilities. All opinions, ~~certificates~~letters, ~~letters~~ evidence and ~~documents delivered pursuant to~~ certificates mentioned above or elsewhere in this Agreement ~~will comply~~ shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory ~~in all material respects~~ to ~~the Initial Purchasers and~~ counsel for the Initial Purchasers~~. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request~~.

Appears in 1 contract

Sources: Purchase Agreement (Ball Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase and pay for the ~~Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ Securities are subject to the ~~accuracy~~ continued accuracy, as of the Closing Time, of the representations and warranties of the ~~Company contained~~ Issuers herein ~~as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~contained, to the accuracy of the statements of the ~~Company’s~~ Issuers and officers of the Issuers made in any certificate pursuant to the provisions hereof, to the performance by the ~~Company~~ Issuers of ~~its covenants and agreements hereunder~~ their respective obligations hereunder, and to the following ~~additional~~ further conditions: (a) On At the Closing ~~Date~~Time, the Initial Purchasers shall have received ~~a legal~~ the opinion ~~from ▇▇▇~~of Wachtell, Lipton, ▇▇▇▇▇ ~~Chance US LLP~~& ▇▇▇▇, counsel to the Issuers, dated as of the Closing Time, in the form set forth below and otherwise reasonably satisfactory to the Initial Purchasers and counsel for the ~~Company, dated the Closing Date~~Initial Purchasers, to the effect that: (i1) BBC has been duly incorporated and is validly existing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its assets and properties and conduct its business as described in the Offering Memorandum and to enter into and perform its obligations under this Agreement and the other Operative Documents; BBC is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such ~~counsel~~ qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; (2) BBC has all requisite corporate power and authority to issue the Guarantee; (3) the authorized, issued and outstanding capital stock of BBC is as set forth in the Offering Memorandum under the caption "Capitalization"; (4) BBC has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Registration Rights Agreement, the Securities, the Exchange Securities, the Private Exchange Securities and the Indenture and to consummate each other element of the Recapitalization to which it is a party; and each of this Agreement, the Registration Rights Agreement, the Securities, the Exchange Securities, the Private Exchange Securities and the Indenture has been duly authorized by BBC and each other element of the Recapitalization to which BBC is a party has been duly authorized by BBC. (5) no ~~reason to believe that~~ consent, approval, authorization, license, qualification or order of or filing or registration with, any court or governmental or regulatory agency or body of the United States or the State of New York or the General Corporation Law of the State of Delaware is required for the execution and delivery by the Issuers of this Agreement, the Registration Rights Agreement or the Indenture or for the issue and sale of the Securities, the Exchange Securities or the Private Exchange Securities, if any, or the issuance of the Guarantee by BBC or the consummation by the Issuers of any of the transactions contemplated herein (including the other ~~than~~ elements of the ~~financial statements and other financial information contained~~ Recapitalization) or therein, except such as may be required (A) in connection with the registration under the Act of the Securities, the Exchange Securities or the Private Exchange Securities, if any, pursuant to the Registration Rights Agreement, (B) the qualification of the Indenture under the Trust Indenture Act in connection with the registration of the Securities, the Exchange Securities or the Private Exchange Securities, if any, pursuant to the Registration Rights Agreement and (C) under the "blue sky" laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Initial Purchasers (as to which such counsel need express no opinion); (6) the ~~Final~~ issuance, sale and delivery of the Securities, the Exchange Securities and the Private Exchange Securities, if any, the execution, delivery and performance by the Issuers of this Agreement, the Registration Rights Agreement and the Indenture (in each case assuming due authorization and execution by each party other than BBC), the declaration and payment of the BBC Distribution and the consummation by the Issuers of the transactions contemplated hereby (including each element of the Recapitalization) and thereby and the compliance by the Issuers with the terms of the foregoing do not, and, at the Closing Time, will not, conflict with or constitute or result in a breach or violation by the Issuers or any of the Subsidiaries of (A) any provision of the Certificate of Incorporation or By-laws of BBC, (B) any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) by the Issuers, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuers under any material agreements or instruments known to such counsel or (C) any law, statute, rule, or regulation of the United States or the State of New York or under the General Corporation Law of the State of Delaware or any order, decree or judgment known to such counsel to be applicable to the Issuers, of any court or governmental or regulatory agency or body or arbitrator in the United States or the States of New York or Delaware. (7) the statements in the Offering Memorandum under the headings "Summary - The Offering," "Description of the Notes" and "Exchange Offer; Registration Rights," insofar as such statements purport to summarize certain provisions of the Securities, the Exchange Securities, the Registration Rights Agreement and the Indenture provide a fair summary of such provisions of such agreements and instruments and are complete in all material respects; (8) all descriptions in the Offering Memorandum of Contracts and other documents to which the Company or the Subsidiaries are a party are accurate and complete in all material respects; (9) each of the Indenture and the Registration Rights Agreement (assuming due authorization and execution by each party thereto other than BBC) constitutes a valid and binding agreement of the Issuers, enforceable against the Issuers in accordance with its terms, except (a) with respect to the Indenture and the Registration Rights Agreement, the Enforceability Limitations, and (b) with respect to the Registration Rights Agreement, that such counsel expresses no opinion regarding the enforceability of the indemnification provisions contained in Section 4 thereof; (10) each of the Securities, when executed and authenticated in accordance with the provisions of the Indenture and delivered and paid for in accordance with the terms of this Agreement, and the Exchange Securities and the Private Exchange Securities, if any, when executed, authenticated and delivered in exchange for the Securities in accordance with the terms of the Registration Rights Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Issuers, enforceable in accordance with its terms except as the enforceability thereof may be limited by the Enforceability Limitations; (11) the Guarantee, when authenticated, executed and delivered by BBC in accordance with the provisions of the Indenture (assuming the due authentication of the Notes by the Trustee) will be entitled to the benefits of the Indenture and will be a legal, valid and binding obligation of BBC enforceable against BBC in accordance with its terms except as the enforceability thereof may be limited by the Enforceability Limitations; (12) The Note Repurchase Letters do not conflict with or constitute or result in a breach or violation of any of the terms of the Old Notes Indenture. (13) to the knowledge of such counsel, other than as described in the Offering Memorandum, no legal, regulatory or governmental proceedings are pending to which any of the Issuers or the Subsidiaries is a party or to which the assets of the Issuers or the Subsidiaries are subject which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or which, individually or in the aggregate, would have a material adverse effect on the power or ability of the Issuers to perform their respective obligations under the Operative Documents or to consummate the transactions contemplated thereby (including the other elements of the Recapitalization) or by the Offering Memorandum and no such material proceedings have been threatened against any of the Issuers or with respect to any of their respective assets or properties; (14) assuming that the representations and warranties of the Initial Purchasers contained in Section 4 of this Agreement are true, correct and complete, and assuming compliance by the Initial Purchasers with their covenants in Section 4 hereof, and assuming that the representations and warranties contained in the Transferee Letters (substantially in the form of Appendix A to the Offering Memorandum) completed by Accredited Investors and non-U.S. persons purchasing Securities from the Initial Purchasers are true and correct as of ~~its date~~ the Closing Time, and assuming compliance by such Accredited Investors and non-U.S. persons with the agreements in the Transferee Letters, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers under, or in connection with the initial resale of such Securities by the Initial Purchasers in accordance with, this Agreement that would require the Issuers to register the Securities under the Act or to qualify the Indenture under the Trust Indenture Act; (15) neither Issuer nor any of the Subsidiaries is an "investment company" or a company "controlled by" or required to register as an investment company as such terms are defined in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder; and (16) when the Securities are issued and delivered pursuant to this Agreement, such Securities will not be of the same class (within the meaning of Rule 144A) as securities of any of the Issuers which are listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclauses (7) and (8) above), on the basis of the foregoing (relying as to materiality to a large extent upon representations and opinions of officers and other representatives of the Issuers), no facts have come to the attention of such counsel which lead such counsel to believe that the Offering Memorandum at the date thereof or as of ~~such opinion~~the Closing Time, ~~included~~ contained or ~~includes any~~ contains an untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such counsel need not express any comment with respect to the financial statements, including the notes thereto and supporting schedules, or any other financial or statistical data set forth or referred to in the Offering Memorandum. In rendering such opinions, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal law of the United States and the laws of the States of Delaware and New York, (B) may rely, as to matters of fact, to the extent they deem proper on representations or certificates of responsible officers of the Issuers and certificates of public officials and (C) may rely to the extent they deem proper upon the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ contemplated by subsection (b). References to the Offering Memorandum in this subsection (a) include any supplements thereto at or prior to the Closing Time. (iib) At the Closing Time, the Initial Purchasers shall have received the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to the Company, dated as of the Closing Time, in the form set forth below and otherwise reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, to the effect that: (1) the Company ~~and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have~~ has been duly ~~organized~~ incorporated and ~~are~~ is validly existing ~~as corporations in good standing~~ under the laws of ~~their respective jurisdictions~~ the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiariesGeorgia, ~~taken as a whole; the Company and each of its significant subsidiaries have full~~ with corporate power and authority to own, lease and operate ~~their respective~~ its assets and properties and ~~assets and~~ conduct ~~their respective businesses~~ its business as described in the ~~Final Memorandum,~~ Offering Memorandum and ~~the Company has corporate power~~ to enter into and perform its obligations under this ~~Agreement, the Registration Rights~~ Agreement and the ~~Indenture~~ other Operative Documents; the Company is duly qualified as a foreign corporation to transact business and ~~to carry out all the terms and provisions hereof and thereof and~~ is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ~~Notes~~ ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be ~~carried out by it;~~ in good standing would not result in a Material Adverse Effect; (2) all of the authorized, issued and outstanding ~~shares of~~ capital stock of ~~each of~~ the ~~Company’s significant subsidiaries, except~~ Company is owned by BBC as ~~otherwise~~ set forth in the ~~Final Memorandum, are owned beneficially by~~ Offering Memorandum under the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentscaption "Capitalization"; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii3) the Company has ~~all~~ the requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the ~~Indenture and the Notes~~Securities, the Exchange ~~Notes~~ Securities, the Private Exchange Securities and the Indenture and to consummate each other element of the Recapitalization to which it is a party; and each of this Agreement, the Registration Rights Agreement, the Securities, the Exchange Securities, the Private Exchange Securities and the Indenture has been duly authorized by the Company; the Company has the requisite corporate power and authority to issue and deliver the Securities, the Exchange Securities and the Private Exchange ~~Notes~~Securities; and the Securities, the ~~issuance, offering~~ Exchange Securities and ~~sale of~~ the ~~Notes to the Initial Purchasers~~ Private Exchange Securities have been duly authorized by the Company ~~pursuant~~ for issuance; and each other element of the Recapitalization to ~~this Agreement,~~ which the ~~compliance~~ Company is a party has been duly authorized by the ~~Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not~~ Company; (x4) ~~require the~~ no consent, approval, authorization, ~~registration~~ license, qualification or ~~qualification~~ order of or ~~with~~ filing or registration with, any court or governmental ~~authority~~or regulatory agency or body of the State of Georgia is required for the execution and delivery by the Company of this Agreement, the Registration Rights Agreement or the Indenture or for the issue and sale of the Securities, the Exchange Securities or the Private Exchange Securities, if any, or the consummation by the Company of any of the transactions contemplated herein (including the other elements of the Recapitalization) or therein, except ~~such as have been obtained or made (and specified in such opinion) or~~ such as may be required by under the ~~securities or Blue Sky~~ "blue sky" laws of ~~the various states of the United States of America and other U.S. jurisdictions~~ any jurisdiction in connection with the ~~offer~~ purchase and ~~sale~~ distribution of the ~~Notes~~ Securities by the Initial Purchasers (as to which such counsel need express no opinion); (5) the issuance, sale and ~~except those that may be required~~ delivery of the Securities, the Exchange Securities and the Private Exchange Securities, if any, the execution, delivery and performance by the ~~Act or the TIA in connection with the exchange offer contemplated by~~ Company of this Agreement, the Registration Rights ~~Agreement~~Agreement and the Indenture (in each case assuming due authorization and execution by each party other than the Company), or the declaration and payment of the Blue Bird Dividend and the consummation by the Issuers of the transactions contemplated hereby (yincluding the other elements of the Recapitalization) and thereby and the compliance by the Issuers with the terms of the foregoing do not, and, at the Closing Time, will not, conflict with or constitute or result in a breach or violation of by the Issuers or any of the ~~terms and provisions of,~~ Subsidiaries of (A) any provision of the Certificate of Incorporation or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or byBy-laws of the ~~Company~~ Company, (B) any law, statute, rule, or regulation of the State of Georgia or any ~~of its significant subsidiaries, or any statute or any judgment, decree,~~ order, ~~rule~~ decree or ~~regulation~~ judgment known to such counsel to be applicable to the Issuers, of any court or ~~other~~ governmental ~~authority~~ or ~~any arbitrator known to such counsel and applicable to the Company~~ regulatory agency or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.bo

Appears in 1 contract

Sources: Purchase Agreement (Blue Bird Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes shall, be subject,~~ Securities set forth opposite the name of such Initial Purchaser in ~~the Initial Purchasers’ sole discretion,~~ Schedule I is subject to the continuing accuracy of the representations and warranties of the Company ~~contained~~ herein as of the date hereof and as of ~~each~~ the Closing ~~Date,~~ Date as if they had been made on and as of ~~each~~ the Closing Date~~, to~~ ; the accuracy on and as of the Closing Date of the statements of officers of the ~~Company’s officers~~ Company made pursuant to the provisions hereof~~, to~~ ; the performance by the Company on and as of the Closing Date of its covenants and agreements ~~hereunder~~ hereunder; and to the following additional conditions: (a) No stop order or similar order preventing or suspending the use of the Preliminary Memorandum or the Final Memorandum shall have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company or the Initial Purchasers, shall be contemplated by any securities or other governmental authority in any jurisdiction (including, without limitation, the Commission); no order asserting that any of the transactions contemplated by this Agreement, Preliminary Memorandum or the Final Memorandum are subject to the registration requirements of the Act shall have been issued; and no securities or other governmental authority (including, without limitation, the Commission) shall have requested any additional information to be included in the Preliminary Memorandum or Final Memorandum or otherwise (b) The Initial Purchasers shall not have advised the Company that the Final Memorandum contains an untrue statement of fact which, in the Initial Purchasers' opinion, is material, or omits to state a fact which, in the Initial Purchasers' opinion, is material and is required to be stated therein or is necessary to make the statements therein in light of the circumstances under which they were made not misleading. (c) On or prior to the Closing Date, the Initial Purchasers shall have received ~~a legal~~ from counsel to the Initial Purchasers, such opinion ~~from~~ or opinions with respect to the issuance and sale of the Firm Securities, the Preliminary Memorandum and the Final Memorandum and such other related matters as the Initial Purchasers reasonably may request and such counsel shall have received such documents and other information as they request to enable them to pass upon such matters. (d) On the Closing Date the Initial Purchasers shall have received the opinion, dated the Closing Date, of Hunton & ▇▇▇▇▇▇▇~~▇ Chance US LLP~~▇, counsel ~~for~~ to the ~~Company, dated the Closing Date~~Company ("Company Counsel"), to the effect ~~that~~set forth below: (i) ~~such counsel has no reason to believe that (other than the financial statements~~ The Company is a duly incorporated and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing ~~as corporations~~ corporation in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have with full power and authority (corporate and other) to ~~own,~~ own or lease ~~and operate their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the Final Memorandum; (ii) The Company has the duly authorized and validly outstanding capitalization set forth under the caption "Capitalization" in the Final Memorandum and will have the adjusted capitalization set forth therein on the Closing Date and on the Option Closing Date (as the case may be), based on the assumptions set forth therein, except as otherwise contemplated in the Final Memorandum. The securities of the Company conform to the descriptions thereof contained in the Final Memorandum. The outstanding shares of Common Stock have been duly authorized and validly issued by the Company and are fully paid and nonassessable. Except as created hereby or referred to in the Final Memorandum, there are no outstanding options, warrants, rights or other arrangements requiring the Company at any time to issue any capital stock. No holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Securities or Conversion Shares and neither the filing of the Registration Statement nor the Offering gives rise to any rights, other than those which have been waived or satisfied and the MHS Registration Rights, for or relating to, the registration of any securities of the Company. The Company has full legal right, power and authority to issue the Securities and perform its obligations thereunder. The Securities have been duly authorized; on the Closing Date or the Option Closing Date (as the case may be), after payment therefor in accordance with the terms of this Agreement and when the Securities have been executed and delivered by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture, (a) the Securities will have been duly and validly executed, authenticated, issued and delivered, will not have been issued in violation of or subject to any preemptive or other similar right and will (x) constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits provided in the Indenture and the Registration Rights Agreement, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general principles of equity, and (y) be convertible into the Conversion Shares in accordance with the terms of the Indenture, and (b) good and marketable title to the Securities will pass to the Initial Purchasers on the Closing Date or the Option Closing Date (as the case may be) free and clear of any lien, encumbrance, security interest, claim or other restriction whatsoever, provided that the Initial Purchasers purchase the Securities in good faith and without notice of any adverse claims. The Conversion Shares have been duly and validly authorized and reserved for issuance upon conversion of the Securities and, when issued and delivered upon such conversion, will be duly and validly issued and outstanding, fully paid and nonassessable and will not have been issued in violation of or subject to any preemptive or other similar rights. (iii) The Company has ~~corporate~~ full legal right, power and authority to enter into this Agreement, the Indenture, the Share Repurchase Agreement (the obligations of the Company under which being subject to the approval of its Board of Directors), the Registration Rights Agreement and ~~the Indenture~~ each Security and to ~~carry out all~~ consummate the ~~terms~~ transactions provided for herein and ~~provisions hereof~~ therein and ~~thereof~~ perform its obligations hereunder and ~~of the Notes to be carried out by it~~thereunder; ~~all of the issued and outstanding shares of capital stock of~~ each of ~~the Company’s significant subsidiaries~~this Agreement, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, ~~provide a fair summary of such provisions;~~ the Registration Rights Agreement and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement each Security has been duly authorized, executed and delivered by the Company~~; (v)~~ ; and each of this Agreement, the ~~execution~~ Indenture, the Share Repurchase Agreement, the Registration Rights Agreement and ~~delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (~~each Security assuming ~~the~~ due authorization, execution and delivery ~~thereof~~ by each other party or parties hereto or thereto, and in the case of the Securities, authentication by the ~~Trustee)~~Trustee in accordance with the Indenture, ~~the Indenture~~ is or will be upon issuance a ~~legal,~~ valid and binding agreement of the Company, enforceable ~~against the Company~~ in accordance with its ~~terms (subject~~terms, except as ~~to enforcement of remedies, to~~ limited by applicable bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other laws now or hereafter in effect relating to or affecting creditors’ ' rights generally ~~from time~~ or by general principles of equity relating to ~~time in effect). The Indenture meets~~ the ~~requirements for qualification under~~ availability of remedies and except as rights to indemnity and contribution may be limited by federal or state securities laws or the ~~TIA. (vi)~~ public policy underlying such laws, and the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and Securities are entitled to the benefits of the Indenture~~; no holder~~ . None of ~~securities~~ the Company's execution or delivery of this Agreement, the Indenture, the Registration Rights Agreement and each Security, its performance hereof or thereof, its consummation of the transactions contemplated herein or therein or its application of the net proceeds of the Offering in the manner set forth under the caption "Use of Proceeds", conflicts or will conflict with or results or will result in any breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon, any property or assets of the Company ~~has~~ pursuant to the terms of (A) the certificate of incorporation or by-laws of the Company; (B) the terms of any ~~right~~ indenture, mortgage, deed of trust, voting trust agreement, stockholder's agreement, note agreement or other agreement or instrument known to such counsel after reasonable investigation to which ~~has not been fully exercised or waived to require~~ the Company is a party or by which it is or may be bound or to ~~register the offer~~ which any of its assets, properties or ~~sale~~ business may be subject; or (C) any statute, rule or regulation of any regulatory body or administrative agency or other governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its activities or properties; or any judgment, decree or order, known to such counsel after reasonable investigation, of any government, arbitrator, court, regulatory body or administrative agency or other governmental agency or body, domestic or foreign, having such jurisdiction; and no consent, approval, authorization or order of any court, regulatory body or administrative agency or other governmental agency or body, domestic or foreign, has been or is required for the Company's performance of this Agreement, the Indenture, the Registration Rights Agreement or the Securities or the consummation of the transactions contemplated hereby or thereby, except such as have been obtained under state securities ~~owned~~ or blue sky laws in connection with the purchase and subsequent resale or placement distribution by ~~such holder~~ the Initial Purchasers of the Securities; (iv) The Indenture is in a form to be qualified under the ~~Act~~ TIA and the Securities are in ~~the offering of the Notes contemplated by this Agreement or in the Exchange Offer~~ a form contemplated by the ~~Registration Rights Agreement~~Indenture; (~~vii~~v) The Securities delivered on such Closing Date are convertible into the ~~Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by~~ shares of Common Stock of the Company in accordance with the terms of the Indenture; the Conversion Shares have been duly authorized and reserved for issuance upon such conversion and, when issued upon such conversion, will be validly issued, fully paid and nonassessable; (vi) The descriptions of the Indenture, the Share Repurchase Agreement and the Registration Rights Agreement set forth in the Final Memorandum are accurate and fairly describe such agreements in all material respects; (vii) The descriptions of the Securities and the ~~Indenture (assuming~~ Conversion Shares in the ~~due authorization~~Final Memorandum, ~~execution and delivery of~~ when such securities are issued and, with respect to the ~~Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes~~ Securities, authenticated by the Trustee in accordance with the Indenture), ~~will be the legal, valid~~ are accurate and ~~binding obligations of the Company, enforceable~~ fairly describe such securities in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).all material respects; (viii) To the ~~Company has all requisite corporate power and authority to execute~~best of such counsel's knowledge, ~~deliver and perform its obligations under~~ the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement conduct of the ~~Company, enforceable against the Company in accordance with its terms (subject, as to enforcement~~ business of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not ~~an “investment company” and~~in violation of any federal, ~~after giving effect~~ state or local statute, administrative regulation or other law, which violation is likely to ~~the Offering of the Notes~~ have a Material Adverse Effect; and the ~~application of~~ Company has obtained all licenses, permits, franchises, certificates and other authorizations from state, federal and other regulatory authorities as are necessary or required for the ~~proceeds therefrom~~ownership, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any leasing and operation of its ~~subsidiaries is a party or to which~~ properties and the ~~property of the Company or any~~ conduct of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated business as presently conducted and as contemplated in the Final Memorandum.; (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiiiix) No registration under the Act of the ~~Notes~~ Securities is required in connection with the sale of the ~~Notes~~ Securities to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the ~~Notes~~ Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the ~~commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the~~ effectiveness of the ~~Shelf~~ Registration ~~Statement (as defined in the Registration Rights Agreement)~~Statement, the ~~Indenture~~ indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such ~~Notes~~ Securities in the initial resale thereof are ~~qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”)~~ QIBs or Accredited Investors or (B) that the offer or sale of the ~~Notes~~ Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such ~~Notes~~ Securities to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof; (x) No securities of the Company are of the same class (within the meaning of Rule 144A) as the Securities and listed on a national securities exchange registered under Section 6 of the Exchange Act, or quoted in a U.S. automated inter-dealer quotation system; (xi) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System; and (xii) No stop order or similar order preventing or suspending the use of the Final Memorandum has been issued; no proceedings for that purpose are pending, or, to the knowledge of such counsel, contemplated by any securities or other governmental authority in any jurisdiction (including, without limitation, the Commission); no order asserting that any of the transactions contemplated by the Initial Purchase Agreement or the Final Memorandum are subject to the registration requirements of the Act has been issued; and no securities or other governmental authority (including, without limitation, the Commission) has requested any additional information to be included in the Final Memorandum or otherwise. In addition, such counsel shall state that in the course of the preparation of the Preliminary Memorandum and Final Memorandum, such counsel has participated in conferences with officers and directors of the Company and with the Company's independent public accountants, at which conferences such counsel made inquiries of such officers, directors and accountants and discussed the contents of the Preliminary Memorandum and Final Memorandum and (without taking any further action to verify independently the statements made in the Preliminary Memorandum and Final Memorandum and, except as stated in the foregoing opinion, without assuming responsibility for the accuracy, completeness or fairness of such statements) nothing has come to such counsel's attention that causes such counsel to believe that the Final Memorandum as of the date thereof or as of the Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading (it being understood that such counsel need not express any opinion with respect to the financial statements, schedules and other financial data included in the Preliminary Memorandum and Final Memorandum). In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws ~~of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware,~~ as to specified regulatory matters (to the extent satisfactory in form and scope to counsel for the Initial Purchasers, ) such counsel may rely upon or substitute the opinion of ~~▇▇▇▇▇▇▇ LLP~~special regulatory counsel reasonably satisfactory to the Initial Purchasers. An The foregoing opinion shall also state that the Initial Purchasers are justified in relying upon such opinion, and copies of ~~▇▇▇▇▇▇▇ LLP~~ such opinions shall be delivered to the Initial Purchasers and counsel for the Initial ~~Purchasers covering matters reasonably requested by the Initial~~ Purchasers~~. References~~ . (e) On or prior to ~~the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at~~ the Closing Date~~. (b) The~~ , counsel to the Initial Purchasers shall have ~~received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP~~been furnished such documents, ~~counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement~~ certificates and ~~such other related matters~~ opinions as ~~the Initial Purchasers~~ they may reasonably ~~require. In rendering such opinion~~require in order to evidence the accuracy, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matterscompleteness or satisfaction of any of the representations or warranties of the Company, or conditions herein contained. (cf) ~~The~~ At the time that this Agreement is executed by the Company the Initial Purchasers shall have received from ~~PricewaterhouseCoopers~~ KPMG Peat Marwick LLP a letter ~~or letters dated, respectively,~~ as of the date ~~hereof and~~ this Agreement is executed by the ~~Closing Date,~~ Company in form and substance satisfactory to ~~counsel for~~ you (the ~~Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to~~ "Original Letter"), and on the Closing Date the Initial Purchasers at shall have received from such firm a letter dated the Closing ~~a certificate of its Chairman of the Board~~Date stating that, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of ~~the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and~~ a specified date not earlier than five (ii5) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and days prior to the Closing Date, ~~there shall not have occurred any downgrading, nor shall any notice have been given~~ nothing has come to the attention of ~~any intended or potential downgrading or of any review for a possible change~~ such firm to suggest that ~~does not indicate~~ the ~~direction of the possible change,~~ statements made in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they Original Letter are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Initial Purchase Agreement (World Airways Inc /De/)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase ~~and pay for~~ the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements Firm Debentures hereunder ~~and~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Debentures in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated. (b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, or results of operations of the Company, the Subsidiaries or the Controlled Entities not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Debentures, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Debentures. (c) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from~~ of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ~~Chance US LLP~~& ▇▇▇▇▇, L.L.C., counsel for the Company, dated the Closing ~~Date~~Date and addressed to the Initial Purchasers, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and ~~each of its “~~those subsidiaries that constitute "significant subsidiaries~~” (as defined in~~ " under Rule ~~1.02(w~~1-02(w) of Regulation S-X ~~under~~ (the ~~Exchange Act~~"Significant Subsidiaries") ~~have~~ has been duly ~~organized~~ incorporated and ~~are~~ is validly existing as ~~corporations~~ a corporation in good standing under the laws of ~~their respective jurisdictions~~ the jurisdiction of ~~incorporation and are duly qualified~~ its incorporation; (ii) The Offering Memorandum with respect to ~~transact business as foreign corporations and are in good standing under~~ the ~~laws of all other jurisdictions where such counsel~~ Debentures has been ~~advised~~ prepared by the Company for use by the Initial Purchasers in connection with the Exempt Resales. No order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the ~~failure~~ transactions contemplated by this Agreement are subject to ~~be so qualified would amount~~ the registration requirements of the Act has been issued and no proceeding for that purpose has commenced or is pending or, to the knowledge of such Counsel, is contemplated. (iii) The Incorporated Documents heretofore filed were filed in a timely manner and, when they were filed (or, if any amendment with respect to any such document was filed, when such document was filed), conformed in all material ~~liability or disability~~ respects to the requirements of the Exchange Act. (iv) The Indenture has been duly and validly authorized by the Company and, upon its execution, delivery and performance by the Company and assuming due authorization, execution, delivery and performance by the Trustee, will be a valid and binding agreement of the Company, enforceable in accordance with its ~~subsidiaries~~terms, ~~taken~~ except as ~~a whole~~enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and conforms in all material respects to the description thereof in the Offering Memorandum; no qualification of the Indenture under the 1939 Act is required in connection with the offer and sale of the Debentures contemplated hereby or in connection with the Exempt Resales. (v) The Debentures have been duly authorized by the Company and, when executed by the Company and ~~each~~ authenticated by the Trustee in accordance with the Indenture and delivered to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of ~~its significant subsidiaries have full power~~ the Company entitled to the benefits of the Indenture and ~~authority to own~~enforceable in accordance with their terms, ~~lease and operate their respective properties and assets and conduct their respective businesses~~ except as ~~described in~~ enforcement thereof may be limited by bankruptcy, insolvency or other similar laws affecting the ~~Final Memorandum~~enforcement of creditors' rights generally, and the ~~Company has corporate power~~ Debentures will conform in all material respects to ~~enter into this Agreement~~the description thereof in the Offering Memorandum. (vi) The authorized, ~~the Registration Rights Agreement~~ issued and ~~the Indenture and to carry out all the terms and provisions hereof and thereof and~~ outstanding capital stock of the ~~Notes~~ Company is as set forth under the caption "Capitalization" in the Offering Memorandum as of the date indicated therein; all of the issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued, are fully paid and nonassessable, and have not been issued in violation of any preemptive right or, to ~~be carried out by it~~the best of such Counsel's knowledge, other similar right; all of the issued and outstanding shares of capital stock of each of the ~~Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum~~Significant Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and are owned ~~beneficially~~ by the ~~Company~~ Company, free and clear of any ~~perfected security~~ adverse claim; and all of the issued and outstanding partnership interests orrepresenting ownership in the Controlled Entities have been duly authorized and, to the extent material to the business, operations or financial condition of the Company, the Significant Subsidiaries and the Controlled Entities taken as a whole, validly issued, the partnership interests held of record by the Company are owned free and clear of any adverse claim, except such claims that would not have a Material Adverse Effect on the business, operations or financial condition of the Company, the Significant Subsidiaries and Controlled Entities taken as a whole; the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Offering Memorandum under the caption "Description of Capital Stock"; and the shares of Common Stock issuable upon conversion of the Debentures have been validly authorized and reserved for issuance and, when delivered upon conversion of the Debentures, will have been validly issued and fully paid and will be nonassessable and free of preemptive or similar rights; (vii) Each of the Company and the Significant Subsidiaries has full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Offering Memorandum; and each of the Company and the Significant Subsidiaries is duly qualified to do business as a foreign corporation, and is in good standing in all jurisdictions in the United States, if any, in which it is required to be so qualified and in which the failure so to qualify would have a Materially Adverse Effect on the Company, the Subsidiaries and Controlled Entities, taken as a whole; (viii) To the best of such Counsel's knowledge, there are no legal or governmental proceedings pending or threatened against the Company, any Significant Subsidiary or any Controlled Entity, or to which the Company, any Significant Subsidiary or any Controlled Entity, or any of their property, is subject, which are required to be disclosed in the Offering Memorandum (or any amendment or supplement thereto) by the Act, other than those disclosed therein; and to the best knowledge of such ~~counsel~~Counsel after reasonable inquiry, neither the Company, any ~~other security interests~~Significant Subsidiary or any Controlled Entity is in violation of any law, ~~liens~~ordinance, ~~encumbrances~~administrative or governmental rule or regulation applicable to the Company, ~~equities~~ any Significant Subsidiary or ~~claims~~any Controlled Entity, except for ~~pledges of subsidiary stock under debt instruments~~violations, if any, which in the aggregate do not have a Material Adverse Effect; (~~iii~~ix) Neither the ~~statements set forth under~~ Company, any Significant Subsidiary or any Controlled Entity is in violation of its respective certificate or articles of incorporation or bylaws, or other organizational documents, or to the ~~heading “Description~~ best knowledge of ~~Notes”~~ such Counsel after reasonable inquiry, is in default in the ~~Final Memorandum~~performance of any material obligation, ~~insofar~~ agreement or condition contained in any bond, debenture, note or other evidence of indebtedness, which default could have a Material Adverse Effect, except as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to may be disclosed in ~~a prospectus pursuant to~~ the ~~Act and the Exchange Act and the respective rules and regulations thereunder~~Offering Memorandum (or any amendment or supplement thereto); (ivx) This Agreement and the ~~execution and delivery of this~~ Registration Rights Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company andauthorized, ~~when duly~~ executed and delivered by the Company (and, assuming ~~the~~ due authorization, execution and delivery ~~thereof~~ by ~~the Trustee)~~you, ~~the Indenture will be~~ is a ~~legal~~valid, ~~valid~~ legal and binding agreement of the Company, enforceable against the Company in accordance with its ~~terms (subject~~terms, except as to enforcement of ~~remedies~~rights to indemnity and contribution hereunder may be limited by applicable law; (xi) Each of the Company, the Significant Subsidiaries and the Controlled Entities holds all material permits, licenses, certificates of need and other approvals or authorizations of and from governmental regulatory officials and bodies necessary to ~~applicable bankruptcy~~entitle it to own its properties and conduct its business as described in the Offering Memorandum, ~~reorganization~~or to receive reimbursement under Medicare (if represented in the Offering Memorandum as being Medicare- certified, ~~insolvency, moratorium~~ except where the lack of such approval or authorization would not have a Material Adverse Effect); (xii) No holder of any security of the Company (other ~~laws affecting creditors’ rights generally from time~~ than holders of the Debentures and holders of shares of Common Stock received upon conversion thereof) has any right to ~~time in effect). The Indenture meets~~ request or demand registration of shares of Common Stock or any other security of the ~~requirements for qualification under~~ Company because of the ~~TIA~~consummation of the transactions contemplated by this Agreement or the Registration Rights Agreement. (vixiii) When the ~~Notes have been duly authorized by all necessary corporate action~~ Debentures are issued and delivered pursuant to this Agreement, such Debentures will not be of the same class (within the meaning of Rule 144A(d)(3) under the Act) as any security of the Company that is listed on a national securities exchange registered under Section 6 of the Exchange Act or that is quoted in a United States automated inter-dealer quotation system. (xiv) Neither the Company nor any affiliate (as defined in Rule 501(b) of Regulation D ("Regulation D") under the Act) of the Company has directly, or through any agent (provided that no representation is made as to the Initial Purchasers or any person acting on their behalf), (A) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Act) which is or will be integrated with the offering and sale of the Debentures in a manner that would require the registration of the Debentures under the Act or (B) engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offering of the Debentures. (xv) Except as otherwise provided in the Indenture, the Company is not required to deliver the information specified in Rule 144A(d)(4) in connection with the offering and resale of the Debentures by the Initial Purchasers. (xvi) No registration of the Debentures under the Act is required for the sale of the Debentures to the Initial Purchasers as contemplated in this Agreement or for the Exempt Resales (assuming (A) that any Eligible Purchaser who buys the Debentures in the Exempt Resales is a Qualified Institutional Buyer, Accredited Investor or a person other than a U.S. person outside the United States in reliance on Regulation S, (B) the accuracy of the Initial Purchasers' representations and those of the Company in this Agreement regarding the absence of general solicitation in connection with the Exempt Resales and (C) the accuracy of the representations made by each Accredited Investor who purchases Debentures pursuant to an Exempt Resale as set forth in the letter of representation executed by such Accredited Investor in the form of Annex A to the Offering Memorandum). (xvii) The Company is not required to obtain stockholder consent or approval pursuant to the rules of the New York Stock Exchange in connection with the offering and sale of the Debentures. (xviii) The descriptions in the Offering Memorandum of statutes, governmental regulations, agreements, contracts, leases and other documents are accurate and fairly present the information required to be presented by the Act; and, to the best of such Counsel's knowledge, there are no statutes, governmental regulations, agreements, contracts, leases or documents of a character required to be described or referred to in the Offering Memorandum (or any amendment or supplement thereto) or to be filed as an exhibit to the Offering Memorandum that are not described or referred to therein and filed as required; (xix) Neither the offer, sale or delivery of the Debentures, the execution, delivery or performance of this Agreement and the Indenture, compliance by the Company with the provisions hereof and thereof, nor consummation by the Company of the transactions contemplated hereby and thereby, conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws, or other organizational documents, of the Company, any Significant Subsidiary or any Controlled Entity or any agreement, indenture, lease or other instrument to which the Company, any Significant Subsidiary or any Controlled Entity is a party or by which any of them or any of their respective properties is bound or is known to such Counsel after reasonable inquiry, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, any Significant Subsidiary or any Controlled Entity. (xx) A New York court would apply the substantive law of the State of New York in construing the Debentures and the Indenture and in ascertaining the validity of the payment of interest and the permissible rate of interest on the Debentures, and would hold that New York law governs the rights and obligations of the parties to the Debentures and the Indenture; (xxi) A New York court applying the substantive law of the State of New York would hold that the payment of interest on the Debentures and the rate of interest provided pursuant to the Indenture with respect to the Debentures are not subject to the usury laws of the State of New York; (xxii) An Alabama court should apply the substantive law of the State of New York in construing the Indenture and the Debentures and in ascertaining the validity of the payment of interest and the rate of interest provided pursuant to the Indenture with respect to the Debentures, and should hold that New York law governs the rights and obligations of the parties to the Debentures and the Indenture. Such Counsel may state that they have participated in conferences with officers and representatives of the Company and with its independent public accountants regarding the contents of the Offering Memorandum, but have not independently verified the statements made in the Offering Memorandum; and such Counsel will state that nothing has come to their attention which has caused them to believe that the Offering Memorandum (including the Incorporated Documents) as of its date and as of the Closing Date, ~~the Notes will have been duly executed~~ including, without limitation, all descriptions of statutes, governmental regulations, agreements, contracts, leases and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act documents contained in the ~~offering of~~ Offering Memorandum (including the ~~Notes contemplated by this Agreement or in~~ Incorporated Documents but not including the ~~Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes~~ financial statements and ~~the Private Exchange Notes have been duly authorized by the Company~~supporting schedules, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indentureupon which such counsel need express no opinion), ~~will be the legal, valid and binding obligations~~ contained an untrue statement of ~~the Company, enforceable in accordance with their terms (subject, as~~ a material fact or omitted to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be state a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be fact required to be ~~described~~ stated therein or necessary to make the statements therein, in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act light of the ~~Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum~~ circumstances under which they were made, not misleading or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the ~~Initial Purchasers at the Closing a certificate~~ Offering Memorandum, as of its ~~Chairman of the Board~~respective date, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date~~; and the Company has performed all covenants and agreements and satisfied all conditions on its part~~ , contained any untrue statement of a material fact or omitted to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any state a material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (Healthsouth Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes shall,~~ Securities to be ~~subject~~purchased by it on the Closing Date hereunder are subject to the fulfillment, in ~~the~~ such Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the ~~Initial Purchasers~~ use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel~~ been issued and no proceedings for ~~the Company, dated the Closing Date~~those purposes shall have been commenced or shall be pending or, to the ~~effect that:~~knowledge of the Company and Parent Guarantor, threatened. No order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company and Parent Guarantor, threatened. (b) Subsequent to the date hereof, (i) ~~such counsel has no reason to believe that~~ except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (~~other than~~ financial or other), business, prospects, properties, assets, net worth or results of operations of the ~~financial statements~~ Parent Guarantor and ~~other financial information contained therein~~the Subsidiaries, taken as ~~to which such counsel need express no opinion~~a whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, and (ii) the ~~Final Memorandum, as of its date or the date of such opinion, included or includes~~ Offering Memorandum shall not contain any untrue statement of a material fact or ~~omitted or omits~~ omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~. (ii)~~ , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to ~~transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where~~ correct any such ~~counsel has been advised that the failure to be so qualified would amount to a material liability~~ misstatement or ~~disability to the Company and its subsidiaries~~omission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers~~’ representations in Section 8 and those~~ , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateSecurities. (bc) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from~~ of Tuke ▇▇▇▇ & ▇▇▇▇▇▇▇, PLC counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form of Exhibit B hereto. (d) The Initial Purchasers shall have received on the Closing Date an opinion of Osler, ▇▇▇▇▇▇ & Harcourt, Canadian counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form of Exhibit C hereto. (e) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~▇, counsel for the Initial Purchasers, dated the Closing Date, and addressed to the Initial Purchasers, with respect to ~~certain legal matters relating to this Agreement and~~ such ~~other related~~ matters as the Initial Purchasers may ~~reasonably require. In rendering~~ request. (f) The Initial Purchasers shall have received on the Closing Date an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇, Canadian counsel for the Initial Purchasers, dated the Closing Date and addressed to the Initial Purchasers, with respect to such ~~opinion~~matters as the Initial Purchasers may request. (g) The Initial Purchasers shall have received "cold comfort" letters addressed to the Initial Purchasers, and dated the date hereof and the Closing Date, from ▇▇▇▇▇▇ ▇▇▇▇▇~~▇ & ▇▇▇▇~~▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, & Co. substantially in the ~~date hereof and the Closing Date, in form and substance satisfactory to counsel for~~ forms heretofore approved by the Initial Purchasers. (di) ~~The Company~~ There shall not have ~~furnished~~ been any change in the capital stock of the Parent Guarantor or ~~caused to be furnished~~ any Subsidiary nor any material increase in the short-term or long-term debt of the Parent Guarantor or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Parent Guarantor and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the ~~Initial Purchasers at~~ Parent Guarantor and the ~~Closing~~ Subsidiaries, taken as a ~~certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:~~ whole; (iiii) all the representations and warranties of the Parent Guarantor and the Company contained in this Agreement ~~are~~ shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; and (iv) the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of each of the Company ~~has~~ and the Parent Guarantor (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(h) and in Section 7(i) hereof. (i) The Company and the Parent Guarantor shall not have failed at or prior to the Closing Date to have performed ~~all covenants~~ or complied with any of their respective agreements herein contained and ~~agreements and satisfied all conditions on its part~~ required to be performed or ~~satisfied~~ complied with by them hereunder at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (ej) ~~Subsequent to~~ At the time of the execution ~~and delivery~~ of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing DateAgreement, the ~~Initial Purchasers~~ Company shall ~~have received the Registration Rights Agreement executed by the Company and such agreement shall be~~ deliver in ~~full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date,~~ substantially final form to both the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers ~~and counsel for~~ (i) the ~~Initial Purchasers. The Company shall furnish~~ amendment to the ~~Initial Purchasers such conformed copies~~ Loan and Security Agreement dated as of ~~such opinions~~July 18, ~~certificates~~1997 between International Comfort Products Corporation (USA), ~~letters~~the Borrower and NationsBank, ~~and documents in such quantities as~~ N.A., the ~~Initial Purchasers shall reasonably request.~~Lender (the

Appears in 1 contract

Sources: Purchase Agreement (International Comfort Products Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation of ------------------------------------------------- the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the ~~Notes shall,~~ Shares shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties of the Company contained herein as of the date ~~hereof~~ and ~~as of each Closing Date, as if made on~~ time that this Agreement is executed and ~~as of each~~ delivered by the parties hereto (the "Execution Time") and the Closing Date, to the accuracy of the statements of the Company’s 's officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (ai) On The Offering contemplated by this Agreement will become qualified or be exempt from qualification under the securities laws of the several states pursuant to subsection 5(b) not later than the Closing Date, and (ii) at the ~~Initial Purchasers~~ Closing Date no stop order suspending the sale of the Shares shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~been issued, ~~counsel~~ and no proceeding for ~~the Company, dated the Closing Date, to the effect that:~~that purpose shall have been initiated or threatened. (ib) ~~such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the~~ The Final Memorandum, ~~as of its date~~ or ~~the date of such opinion~~any supplement thereto, ~~included or includes~~ will not contain any untrue statement of a material ~~fact~~ fact, or ~~omitted or omits~~ omit to state any material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Initial Purchaser shall have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiariesreceived an opinion, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of dated the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the ~~Initial Purchasers~~Company, ~~dated~~ in the ~~Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require.~~ form of Exhibit E. In rendering any such opinion, ~~▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP~~ such counsel may rely, as to matters of local law, on opinions of local counsel, and as to matters of fact on certificates of responsible officers of the Company and public officials, in which case their opinion is to state that they are so doing and that the Initial Purchaser is justified in relying on such opinions or certificates. References to the Final Memorandum in this paragraph (c) shall ~~have received and may rely upon~~ include any amendment or supplement thereto at the date of such ~~certificates and other documents and information as it may reasonably request to pass upon such matters~~opinion. (cd) The Initial ~~Purchasers~~ Purchaser shall have received from ~~PricewaterhouseCoopers~~ Deloitte & Touche LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to ~~counsel for~~ the Initial ~~Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board~~Purchaser, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers~~ to the effect that: (i) they are independent accountants with respect to the ~~representations and warranties~~ Company within the meaning of Rule 101 of the ~~Company in this Agreement are true and correct as if made on and as~~ AICPA's Code of ~~the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and~~Professional Conduct; (ii) ~~subsequent to~~ in their opinion, the ~~respective dates as of which information is given~~ audited financial statements examined by them and included in the Final Memorandum comply in form in all material respects with the applicable accounting requirements of the Act and the related published rules and regulations; (~~exclusive~~ iii) on the basis of ~~any amendment or supplement thereto~~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), ~~neither~~ a reading of the minute books of the stockholders, the board of directors and any committees thereof of the Company, and inquiries of certain officials of the Company ~~nor~~ who have responsibility for financial and accounting matters, nothing came to their attention that caused them to believe that at a specific date not more than three business days prior to the date of such letter, there were any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, changes in the ~~condition (financial~~ capital stock or ~~otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ total debt of the Company or any decreases in assets or stockholders' equity of ~~its subsidiaries~~the Company, ~~taken as a whole~~in each case compared with amounts shown on the December 18, 1996 balance sheet included in the Final Memorandum; and, except in ~~each case as described~~ all instances for changes, decreases or increases set forth in ~~or contemplated by~~ such letter; and (iv) they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are derived from the general accounting records of the Company and its consolidated subsidiaries and are included in the Final ~~Memorandum (exclusive~~ Memorandum, and have compared such amounts, percentages and financial information with such records of the Company and its consolidated subsidiaries and with information derived from such records and have found them to be in agreement, excluding any ~~amendment~~ questions of legal interpretation. In the event that the letters referred to above set forth any such changes, decreases or ~~supplement thereto)~~increases which, in the reasonable discretion of the Initial Purchaser, are likely to result in a Material Adverse Effect, it shall be a further condition to the obligations of the Initial Purchaser such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Initial Purchaser deems such explanation unnecessary. (e) ~~Subsequent to~~ The Initial Purchaser shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., counsel for the ~~execution and delivery of this Agreement and prior to~~ Initial Purchaser, such opinion or opinions, dated the Closing Date, ~~there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate~~ with respect to the ~~direction~~ issuance and sale of the ~~possible change~~Shares, in the ~~rating accorded~~ Final Memorandum (together with any amendment or supplement thereof or thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of ~~the Company’s securities by any “nationally recognized statistical rating organization”, as~~ enabling them to pass upon such ~~term is defined for purposes of Rule 436(g)(2) under the Act~~matters. (f) The ~~Indenture~~ Initial Purchaser shall have ~~been executed and delivered by all the parties thereto. (g) On~~ received a certificate, dated the Closing Date, ~~the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date~~of ▇▇▇▇▇▇▇ ▇. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request▇.

Appears in 1 contract

Sources: Purchase Agreement (Annaly Mortgage Management Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from ▇~~the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ~~Chance US~~ & ▇▇▇▇ LLP, counsel for the Company, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming Assuming the due authorization, execution and delivery ~~thereof~~ of the Indenture by the Company and the Trustee), the Indenture will ~~be a legal,~~ constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect). The Indenture meets the requirements for qualification under the TIA~~and (ii) general principles of equity. (viii) The Notes are in the form contemplated by the Indenture. Assuming that the Notes have been duly ~~authorized by all necessary corporate action of the Company and~~authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company ~~and~~and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, ~~assuming~~ execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), the Notes will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder of securities of~~ , and enforceable against the Company ~~has any right which has not been fully exercised~~ in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or ~~waived~~ other similar laws now or hereafter in effect relating to ~~require the Company to register the offer or sale~~ creditors' rights generally and (ii) general principles of ~~any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;~~equity. (~~vii~~iii) When the Exchange Notes and the Private Exchange Notes have been ~~duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are~~ duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), the Exchange Notes and the Private Exchange Notes will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect)~~and (ii) general principles of equity. (~~viii~~iv) Assuming the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery ~~thereof~~ of the Registration Rights Agreement by the Company and the Initial ~~Purchasers)~~Purchaser, the Registration Rights Agreement will ~~be a legal,~~ constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that (~~subject, as~~ A) the enforcement thereof may be subject to ~~enforcement of remedies, to applicable~~ (i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect~~ and ~~except that~~ (ii) general principles of equity and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ixv) Assuming the due authorization, execution and delivery of the Assumption Agreement by the Company, the Assumption Agreement will constitute the valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations. (vi) The Indenture, the Notes, the Exchange Notes, the Registration Rights Agreement, the Credit Agreement and the Merger Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum. (vii) The statements in the Final Memorandum under the caption "Certain Relationships and Related Transactions," insofar as they are descriptions of certain provisions of contracts or agreements, fairly summarize such provisions in all material respects. (viii) The execution and delivery of this Agreement, the Indenture, the Registration Rights Agreement, the Assumption Agreement and the Credit Agreement and the consummation of the transactions contemplated hereby, thereby and under the Merger Agreement (including, without limitation, the issuance and sale of the Notes to the Initial Purchaser) will not conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any Applicable Contracts (as defined), except for any such conflict, breach, violation, default or event that would not, individually or in the aggregate, have a Material Adverse Effect 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 Purchaser in Section 8 hereof) any Applicable Laws (as defined). "Applicable Contracts" mean those contracts set forth on Schedule 1 to this Agreement. "Applicable Laws" means the laws of the State of New York and the laws of the United States of America, in each case, that, in such counsel's experience, are normally applicable to transactions of the type provided for herein (it being understood that such counsel has made no special investigation with respect to any other laws), but excluding securities or blue sky laws of any jurisdiction, anti-fraud laws of any jurisdiction, rules and regulations of the National Association of Securities Dealers, Inc. and the Trust Indenture Act of 1939, as amended. Such counsel need not express any opinion, however, as to whether the execution or delivery by the Company ofof the Notes, ~~and~~ this Agreement, the Indenture, the Registration Rights Agreement, the Credit Agreement or the Assumption Agreement, or the performance by the Company of its obligations ~~under, this~~ thereunder or under the Merger Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification will constitute a violation of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default ~~under~~under any covenant, ~~any indenture, mortgage, deed of trust, lease~~ restriction or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, provision with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter financial ratios or ~~letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished~~ tests or ~~caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman~~ any aspect of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the financial condition ~~(financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth~~ or results of operations of the ~~Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)~~Company. (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (Universal Hospital Services Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ respective obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on the Closing Date (as if made again on and as of such date), of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of ~~its covenants and agreements hereunder~~ their respective obligations hereunder, and to each of the following additional terms and conditions: (a) ~~On the Closing Date, the Initial Purchasers~~ The Offering Memorandum shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~been printed and copies made available to you not later than 6:00 p.m., ~~counsel for~~ New York City time, on the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or Business Day following the date of this Agreement, or at such ~~opinion, included~~ later date and time as you may approve in writing. (b) No Initial Purchaser shall have discovered and disclosed to the Company on or ~~includes~~ prior to such Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Lath▇▇ & ▇atk▇▇▇, ▇▇unsel for the Initial Purchasers, is material ~~fact or omitted~~ or omits to state ~~any~~ a fact which, in the opinion of such counsel, is material ~~fact~~ and is required to be stated therein or is necessary in order to make the statements made therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company and the Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Port▇▇ & ▇edg▇▇, ▇.L.P. shall have furnished to the Initial Purchasers its written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated such Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that: (i) The Company and each of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act)~~ Guarantors have been duly ~~organized~~ incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of ~~incorporation and~~ incorporation, are duly qualified to ~~transact~~ do business ~~as foreign corporations~~ and are in good standing ~~under~~ as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the ~~laws~~ conduct of ~~all other jurisdictions~~ their respective businesses requires such qualification, except where ~~such counsel has been advised that~~ the failure to so register or qualify or to be ~~so qualified~~ in good standing would ~~amount to~~ not have a ~~material liability or disability to the Company~~ Material Adverse Effect, and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries~~ have ~~full~~ all power and authority necessary to ~~own, lease and operate~~ own or hold their respective properties and ~~assets and~~ conduct ~~their respective~~ the businesses ~~as described~~ in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, which they are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsengaged; (~~iii~~ii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the The Purchase Agreement has been duly ~~executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and~~authorized, ~~when duly~~ executed and delivered by the Company ~~(assuming the due authorization, execution~~ and ~~delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement~~ each of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on Guarantors and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers~~’ representations in Section 8~~ ) constitutes a valid and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers legally binding agreement of the Company and ~~public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law~~ each of the ~~State~~ Guarantors, enforceable against each of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared them in accordance with ~~the provisions of this Agreement at the Closing Date.~~its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and by general equitable principles; (biii) The ~~Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP~~Warrant Agreement has been duly authorized, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.delivered

Appears in 1 contract

Sources: Purchase Agreement (Key Energy Services Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from ▇▇~~the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇ ~~Chance US~~ & Bird LLP, counsel for the ~~Company~~Issuers and Guarantors, ~~dated~~ in form and substance reasonably satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, and subject to customary exceptions, assumptions and qualifications, substantially to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light Each of the ~~circumstances under which they were made, not misleading. (ii)~~ Issuers and the ~~Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are~~ Guarantors is validly existing ~~as corporations~~ and in good standing under the laws of ~~their~~ its respective ~~jurisdictions~~ jurisdiction of incorporation or formation, as the case may be, and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to ~~own, lease and operate their respective~~ own its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the Final Memorandum, . Each of the Issuers and the ~~Company has corporate power~~ Guarantors is duly qualified to ~~enter into this Agreement~~do business as a foreign corporation, limited liability company or limited partnership, as the ~~Registration Rights Agreement and the Indenture and~~ case may be, in all jurisdictions set forth on a schedule attached to ~~carry out all the terms and provisions hereof and thereof and~~ such opinion. (ii) Each of the ~~Notes to be carried out by it; all of~~ Issuers has the authorized, issued and outstanding ~~shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise~~ capitalization set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;. (iii) The Issuers and the ~~statements set forth~~ Guarantors have all requisite corporate power and authority to execute, deliver and perform each of its obligations under ~~the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and~~ the Indenture, ~~provide a fair summary of such provisions;~~ the Security Documents (other than the Mortgages), the Securities, the Exchange Securities and the ~~statements set forth~~ Private Exchange Securities; the Indenture meets the requirements for qualification under the ~~heading “Certain Federal Income Tax Consequences” in~~ TIA; the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement Indenture has been duly ~~executed~~ and ~~delivered by the Company; (v) the execution and delivery of the Indenture have been duly~~ validly authorized by the ~~Company~~ Issuers and the Guarantors and, when duly executed and delivered by the ~~Company~~ Issuers and each Guarantor (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the ~~Indenture will be a legal,~~ valid and legally binding agreement of the ~~Company~~Issuers and each Guarantor, enforceable against the ~~Company~~ Issuers and each Guarantor in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ rights generally ~~from time to time in effect). The Indenture meets~~ and (ii) general principles of equity and the ~~requirements for qualification under~~ discretion of the ~~TIA~~court before which any proceeding therefor may be brought. (viiv) The Securities are in the ~~Notes~~ form contemplated by the Indenture. The Securities have each been duly and validly authorized by ~~all necessary corporate action of~~ the ~~Company~~ Issuers and, ~~on and as of the Closing Date, the Notes will have been~~ when duly executed and delivered by the ~~Company and~~Issuers and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, ~~assuming~~ execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Securities by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Issuers, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder~~ , and enforceable against the Issuers in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of ~~securities~~ equity and the discretion of the ~~Company has~~ court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;proceeding therefor may be brought. (~~vii~~v) ~~the~~ The Exchange ~~Notes~~ Securities and the Private Exchange ~~Notes~~ Securities have been duly and validly authorized by the ~~Company~~Issuers, and when the Exchange ~~Notes~~ Securities and the Private Exchange ~~Notes~~ Securities are duly executed and delivered by the ~~Company~~ Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange ~~Notes~~ Securities and the Private Exchange ~~Notes~~ Securities by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Issuers, entitled to the benefits of the Indenture, and enforceable against the Issuers in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ rights generally ~~from time to time in effect)~~and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (~~viii~~vi) Each of the ~~Company has~~ Issuers and the Guarantors have all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the ~~Company~~ Issuers and the Guarantors and, when duly executed and delivered by the ~~Company~~ Issuers and the Guarantors (assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers~~Purchaser), will ~~be a legal,~~ constitute the valid and legally binding agreement of the ~~Company~~Issuers and the Guarantors, enforceable against the ~~Company~~ Issuers in accordance with its ~~terms~~ terms, except that (~~subject, as~~ A) the enforcement thereof may be subject to ~~enforcement of remedies, to applicable~~ (i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ rights generally ~~from time to time in effect~~ and ~~except that~~ (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (vii) Each of the Issuers have all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Issuers of the transactions contemplated hereby have been duly and validly authorized by the Issuers. This Agreement has been duly executed and delivered by the Issuers. (viii) The Indenture, the Securities, the Security Documents and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum. (ix) ~~the execution~~ The execution, delivery and ~~delivery by the Company of, and the~~ performance ~~by the Company~~ of ~~its obligations under,~~ this Agreement, the Indenture, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the ~~other~~ transactions ~~herein~~ contemplated ~~do not~~ hereby and thereby (~~x) require~~ including, without limitation, the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer issuance and sale of the ~~Notes by~~ Securities to the Initial ~~Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y~~Purchaser) will not conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms ~~and~~ or provisions ofof those contracts set forth on a schedule attached to such opinion, except for any such conflict, breach, violation, default or event that would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or certificate of formation, as the case may be, or ~~constitute a default under~~bylaws, ~~any indenture, mortgage, deed of trust, lease or other material~~ operating agreement or ~~instrument~~limited partnership agreement, ~~known to such counsel~~as the case may be, ~~to which~~ of the ~~Company~~ Issuers or any of ~~its significant subsidiaries is a party or by which~~ the ~~Company or any of its significant subsidiaries or any of their respective properties are bound~~Guarantors, or (iii) (assuming compliance with all applicable state securities or “Blue Sky” laws and assuming the ~~charter documents or by-laws~~ accuracy of the ~~Company or~~ representations and warranties of the Initial Purchaser in Section 8 hereof) any ~~of its significant subsidiaries~~statute, ~~or any statute or any~~ judgment, decree, order, rule or regulation ~~of any court or other governmental authority or any arbitrator~~ known to such counsel ~~and~~ to be normally applicable to transactions of the ~~Company~~ type described herein, except for any such conflict, breach or ~~its significant subsidiaries;~~violation that would not, individually or in the aggregate, have a Material Adverse Effect. (x) No consent, approval, authorization or order of any governmental authority is required for the ~~Company is not an “investment company” and, after giving effect~~ issuance and sale by the Issuers of the Securities to the ~~Offering~~ Initial Purchaser or the consummation by the Issuers of the ~~Notes and the application of the proceeds therefrom~~other transactions contemplated hereby, ~~will not~~ except such as may be ~~an “investment company”~~required under Blue Sky laws, as to which such ~~term is defined in the 1940 Act; and~~counsel need express no opinion, and those which have previously been obtained. (xi) To the knowledge of such ~~counsel does not know of any~~ counsel, there are no legal or governmental proceedings ~~pending~~ involving or ~~threatened to which~~ affecting the ~~Company~~ Issuers or the Guarantors or any of ~~its subsidiaries is a party~~ their respective properties or ~~to which the property of the Company or any of its subsidiaries is subject~~ assets that would be required to be described in a prospectus pursuant to the Act that are not described in the Final ~~Memorandum or~~ Memorandum, nor, to the knowledge of such counsel, are there any ~~statutes, regulations,~~ material contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described ~~or incorporated~~ in the Final Memorandum. (xii) ~~commencing with~~ None of the ~~Company’s taxable year ended December 31~~Issuers or the Guarantors is, ~~1998,~~ or immediately after the ~~Company was organized~~ sale of the Securities to be sold hereunder and ~~has operated~~ the application of the proceeds from such sale (as described in ~~conformity with~~ the ~~requirements for qualification as a real estate investment trust (~~Final Memorandum under the caption “~~REIT~~Use of Proceeds”) ~~under~~ will be, an “investment company” as such term is defined in the ~~Code, and the Company’s present and proposed method~~ Investment Company Act of ~~operation~~1940, as ~~represented by the Company, will permit the Company to continue to so qualify~~amended. (xiii) No registration under the Act of the ~~Notes~~ Securities is required in connection with the sale of the ~~Notes~~ Securities to the Initial ~~Purchasers~~ Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the ~~Notes~~ Securities by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such ~~Notes~~ Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the ~~Notes~~ Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial ~~Purchasers’~~ Purchaser’s representations in Section 8 and those of the ~~Company~~ Issuers contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such ~~Notes~~ Securities to the Initial ~~Purchasers~~ Purchaser and the initial resale thereof and (iii) the due performance by the Initial ~~Purchasers~~ Purchaser of the agreements set forth in Section 8 hereof~~. In rendering any such opinion, such counsel may rely, as to matters of fact, to~~ . (xiv) Neither the ~~extent such counsel deems proper, on certificates of responsible officers~~ consummation of the ~~Company and public officials and~~transactions contemplated by this Agreement nor the sale, ~~as to matters involving the application of laws of any jurisdiction other than the State of New York~~ issuance, execution or ~~the United States or the General Corporation Law~~ delivery of the ~~State~~ Securities will violate Regulation T, U or X of ~~Delaware~~the Board of Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, to ▇▇▇▇▇▇ & Bird LLP shall additionally state that it has participated in conferences with officers and other representatives of the ~~extent satisfactory in form~~ Issuers and ~~scope to~~ the Guarantors, representatives of the independent public accountants for the Issuers and the Guarantors, representatives of the Initial Purchaser and counsel for the Initial ~~Purchasers~~Purchaser, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(ix)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Issuers’ books and records included in the Final Memorandum). The opinion of ▇▇▇▇▇▇▇ ~~LLP. An opinion of ▇▇▇▇▇▇▇~~ & Bird LLP described in this Section shall be ~~delivered~~ rendered to the Initial ~~Purchasers~~ Purchaser at the request of the Issuers and ~~counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers~~shall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) ~~The~~ On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ the opinion, in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial ~~Purchasers, dated the Closing Date~~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, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial ~~Purchasers~~ Purchaser shall have received from ~~PricewaterhouseCoopers LLP~~ the Independent Accountants a comfort letter or letters ~~dated, respectively,~~ dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial ~~Purchasers~~Purchaser. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the ~~Company~~ Issuers and the Guarantors contained in this Agreement ~~are~~ shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Issuers’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers and the ~~Company has~~ Guarantors shall have performed all covenants and agreements and satisfied all conditions on ~~its~~ their part to be performed or satisfied hereunder at or prior to the Closing Date; and ~~(ii) subsequent to the respective dates~~ , except as ~~of which information is given~~ described in the Final Memorandum (exclusive of any amendment or supplement ~~thereto~~thereto after the date hereof), ~~neither~~ subsequent to the ~~Company nor~~ date of the most recent financial statements in such Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect. (e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date. (f) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers or any of ~~its subsidiaries has~~ the Guarantors shall have sustained any ~~material~~ loss or interference with ~~their respective businesses~~ respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor ~~dispute~~ dispute, slow down or work stoppage or from any legal or governmental proceeding, ~~and there has not been any materially adverse change (including~~order or decree, ~~without limitation~~which loss or interference, ~~a change in management~~ individually or ~~control), or development involving a prospective materially adverse change,~~ in the ~~condition~~ aggregate, has or would be reasonably likely to have a Material Adverse Effect. (~~financial~~ g) The Initial Purchaser shall have received certificates of each Issuer, dated the Closing Date, signed on behalf of each Issuer by its President or ~~otherwise)~~any Senior Vice President and the Chief Financial Officer, ~~management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results~~ to the effect that (i) the representations and warranties of ~~operations~~ each Issuer contained in this Agreement are true and correct on and as of the ~~Company~~ date hereof and on and as of the Closing Date, and each Issuer has performed all covenants and agreements and satisfied all conditions on its part to be performed or ~~any~~ satisfied hereunder at or prior to the Closing Date; (ii) since the date of ~~its subsidiaries, taken as a whole, except~~ the most recent financial statements in ~~each case as described in or contemplated by~~ the Final Memorandum (exclusive of any amendment or supplement ~~thereto~~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). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (gh) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received the Registration Rights Agreement executed by ~~the Company~~ Issuers and each Guarantor and such agreement shall be in full force and effect at all times from and after the Closing Date. (hi) On ~~or before~~ the Closing Date, the Initial ~~Purchasers and counsel for the Initial Purchasers~~ Purchaser shall have received ~~such further certificates, documents~~ a copy of a certificate evidencing the insurance requirements (i) in substantially the form commonly known as “▇▇▇▇▇ 27” or ~~other information as they may have reasonably requested from the Company. All opinions, certificates, letters~~ otherwise in form and ~~documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects~~ substance acceptable to the ~~Initial Purchasers~~ Collateral Agent that (A) provides that the insurance has been issued, is in full force and ~~counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters~~effect, and ~~documents in such quantities as~~ conveys all the ~~Initial Purchasers shall reasonably request.~~rights and privileges afforded under the insurance policies, (B) provides an unequivoca

Appears in 1 contract

Sources: Purchase Agreement (Consolidated Container Co LLC)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~▇ Chance US~~ ▇▇, LLP, special Massachusetts counsel for the Company, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchasers, to the effect that: (i) The Company is duly incorporated and is validly existing under the laws of Massachusetts and has all requisite corporate power and authority to own or lease its properties and to conduct its business in the manner in which it presently is conducted. The Company is duly qualified to do business as a foreign corporation in good standing in the jurisdictions set forth on an annex to such opinion. (ii) The Company has the authorized, issued and outstanding capitalization set forth in the Final Memorandum; all of the outstanding shares of capital stock of the Company have been duly authorized and validly issued, and are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; the Company's authorized capital stock conforms to the description thereof contained in the Final Memorandum. (iii) The Company has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the Registration Rights Agreement; each of the Indenture, the Notes, the Exchange Notes and the Registration Rights Agreement has been duly and validly authorized by the Company; the Indenture, the Notes and the Registration Rights Agreement have been duly executed and delivered by the Company. (iv) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company. This Agreement has been duly executed and delivered by the Company. (v) The execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Notes to the Initial Purchasers) will not contravene or constitute or result in a breach or a default under or violation of any of (i) the articles of organization or bylaws of the Company, or (ii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof and assuming compliance with the Act with respect to the exchange of the Notes for the Exchange Notes and the obligations of the Company under the Registration Rights Agreement) any Massachusetts statute, judgment, decree, order, rule or regulation known to such counsel ~~has no reason~~ to ~~believe that~~ be applicable to the Company or any of its properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect. (vi) No consent, approval, authorization or order of any Massachusetts governmental authority is required for the issuance and sale by the Company of the Notes to the Initial Purchasers or the consummation by the Company of the other ~~than the financial statements and other financial information contained therein~~transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion~~) the Final Memorandum~~, as and those which have previously been obtained. The opinion of ~~its date or the date~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP described in this Section may be limited to matters of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company Massachusetts law and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to shall be ~~so qualified would amount to a material liability or disability~~ rendered to the ~~Company and its subsidiaries, taken as a whole;~~ Initial Purchasers at the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action request of the Company and shall so state therein. (b) On the ~~Agreement has been duly executed~~ Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and ~~delivered by~~ addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company;, in form and substance satisfactory to counsel for the Initial Purchasers, to the effect that: (vi) The Indenture conforms to the requirements for qualification under the TIA (assuming due execution and delivery ~~of the Indenture have been duly authorized~~ thereof by the Company ~~and~~and the Trustee and provided that such counsel need express no opinion with respect to the Statement of Eligibility of the Trustee on Form T-1); the Indenture, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the ~~Indenture will be a legal,~~ valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms (subject~~terms, ~~as to enforcement of remedies,~~ subject to applicable bankruptcy, insolvency, reorganization, ~~insolvency~~moratorium, ~~moratorium~~ fraudulent transfer or other similar laws now or hereafter in effect relating to or affecting creditors’ ' rights and remedies generally ~~from time~~ and to ~~time~~ general principles of equity (regardless of whether enforcement is sought in ~~effect~~a proceeding at law or in equity)~~. The Indenture meets the requirements for qualification under the TIA~~. (viii) The Notes are substantially in the ~~Notes have been duly authorized by all necessary corporate action~~ form of Exhibit A to the ~~Company and~~Indenture. The Notes, ~~on and as of the Closing Date, the Notes will have been~~ when duly executed and delivered by the Company ~~and~~and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, ~~assuming~~ execution and delivery of the Indenture by the Company and the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder of securities of~~ , and enforceable against the Company ~~has any right which has not been fully exercised~~ in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or ~~waived~~ other similar laws now or hereafter in effect relating to ~~require the Company~~ or affecting creditors' rights and remedies generally and to ~~register the offer or sale~~ general principles of ~~any securities owned by such holder under the Act~~ equity (regardless of whether enforcement is sought in ~~the offering of the Notes contemplated by this Agreement~~ a proceeding at law or in ~~the Exchange Offer contemplated by the Registration Rights Agreement;~~equity). (~~vii~~iii) ~~the~~ The Exchange ~~Notes and the Private Exchange Notes have been duly authorized by the Company~~Notes, ~~and~~ when ~~the Exchange Notes and the Private Exchange Notes are~~ duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Company and the Trustee and due authentication and delivery of the ~~Exchange Notes and the Private~~ Exchange Notes by the Trustee in accordance with the Indenture), and when duly and validly exchanged for the Notes, and assuming compliance with federal or state securities laws, will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms (subject~~terms, ~~as to enforcement of remedies,~~ subject to applicable bankruptcy, insolvency, reorganization, ~~insolvency~~moratorium, ~~moratorium~~ fraudulent transfer or other similar laws now or hereafter in effect relating to or affecting creditors’ ' rights and remedies generally ~~from time~~ and to ~~time~~ general principles of equity (regardless of whether enforcement is sought in ~~effect~~a proceeding at law or in equity). (~~viii~~iv) ~~the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the~~ The Registration Rights Agreement~~; the Registration Rights Agreement has been duly authorized by the Company and~~, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will ~~be a legal,~~ constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms (subject~~terms, ~~as to enforcement of remedies,~~ subject to applicable bankruptcy, insolvency, reorganization, ~~insolvency~~moratorium, ~~moratorium~~ fraudulent transfer or other similar laws now or hereafter in effect relating to or affecting creditors’ ' rights and remedies generally ~~from time~~ and to ~~time~~ general principles of equity (regardless of whether enforcement is sought in ~~effect~~ a proceeding at law or in equity) and except to the extent that ~~any rights to indemnity~~ indemnification or contribution ~~thereunder~~ provisions may be ~~limited by federal and state securities laws and public policy considerations)~~unenforceable. (ixv) Except as set forth in the ~~execution and delivery~~ Final Memorandum, no holder of securities of the Company or any Subsidiary is entitled pursuant to any Contract identified to such counsel in a certificate of the Company as being a material instrument to have such securities registered under a registration statement filed by the Company ofpursuant to the Registration Rights Agreement. (vi) The Company is not in breach or default under (nor has any event occurred which, with notice or passage of time or both, would constitute a default under) or in violation of any of the terms or provisions of any Contract identified to such counsel in a certificate of the Company as being a material instrument, except for any such breach, default, violation or event which would not, individually or in the aggregate, have a Material Adverse Effect. (vii) The execution, delivery and ~~the~~ performance by the Company of ~~its obligations under,~~ this ~~Agreement, the Registration Rights~~ Agreement, the Indenture and the ~~Notes~~Registration Rights Agreement (including, without limitation, the ~~Exchange Notes and the Private Exchange Notes, the issuance, offering~~ issuance and sale of the Notes to the Initial ~~Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do~~ Purchasers) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of the terms ~~and~~ or provisions ~~of, or constitute a default under,~~ as they exist on the Closing Date of any ~~indenture, mortgage, deed of trust, lease or other material agreement or instrument, known~~ Contract identified to such ~~counsel, to which the Company or any of its significant subsidiaries is~~ counsel in a ~~party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws~~ certificate of the Company as being a material instrument, except for any such conflict, breach, violation, default or ~~any of its significant subsidiaries~~event which would not, individually or in the aggregate, have a Material Adverse Effect, or (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof and assuming compliance with the Act with respect to the exchange of the Notes for the Exchange Notes and the obligations of the Company under the Registration Rights Agreement and excluding federal and state securities laws and regulations as to which such counsel shall not express an opinion pursuant to this paragraph (vii)) any ~~statute or any~~ statute, judgment, decree, order, rule or regulation ~~of any court or other governmental authority or any arbitrator~~ known to such counsel ~~and~~ to be applicable to the ~~Company~~ Company, except for any such conflict, breach or ~~its significant subsidiaries;~~violation which would not, individually or in the aggregate, have a Material Adverse Effect. (xviii) No consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company ~~is not an “investment company” and, after giving effect to the Offering~~ of the Notes to the Initial Purchasers or the consummation by the Company of the other transactions contemplated hereby (assuming compliance with federal and state securities laws in connection with or pursuant to the Registration Rights Agreement and provided that such counsel need express no opinion in this paragraph (viii) regarding indemnification provisions), except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained. (ix) None of the Company or the Subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds ~~therefrom~~from such sale (as described in the Final Memorandum under the caption "Use of Proceeds") will be, ~~will not~~ required to be registered as an “"investment company”, " as such term is defined in the ~~1940 Act; and (xi) such counsel does not know~~ Investment Company Act of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes1940, ~~regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum~~as amended. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiiix) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this ~~Agreement~~ Agreement, the Indenture and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Registered Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is ~~not required to be qualified under~~ exempt from the qualification requirements of the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act ("Accredited Investors") or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company contained in this Agreement ~~regarding the absence of a general solicitation~~ and compliance with their respective agreements as set forth in ~~connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof~~ this Agreement and (iii) that the ~~due performance~~ offering of the Notes will be conducted solely in the manner contemplated by this Agreement, the Indenture and the Final Memorandum. (xi) Neither the consummation by the ~~Initial Purchasers~~ Company of the ~~agreements set forth in Section 8 hereof. In rendering any such opinion~~transactions contemplated by this Agreement nor the sale, ~~such counsel may rely~~issuance, ~~as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers~~ execution or delivery of the Notes by the Company ~~and public officials and~~will result in a violation by the Company of Regulation G, ~~as to matters involving the application of laws of any jurisdiction other than the State of New York~~ T, U or ~~the United States or the General Corporation Law~~ X of the ~~State~~ Board of ~~Delaware~~Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, ~~to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇~~▇▇▇▇▇▇ ~~LLP. An opinion of~~ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall ~~be delivered to~~ additionally state that it has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchasers and counsel for the Initial ~~Purchasers covering~~ Purchasers, at which conferences the contents of the Final Memorandum and related matters ~~reasonably requested~~ were discussed, because the purpose of its professional engagement was not to establish or confirm factual matters and because the scope of its examination of the affairs of the Company did not permit it to verify the accuracy, completeness or fairness of the statements set forth in the Final Memorandum, it is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent set forth below in clause (ii) of the following sentence), and on the basis of the foregoing, no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related schedules and notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). The opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall also state that (i) to its knowledge, there are no legal or governmental proceedings involving or affecting the Company or any of its properties or assets which would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or which seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Final Memorandum under the caption "Use of Proceeds" and (ii) to the extent that the Final Memorandum contains descriptions of certain provisions of the Indenture, the Notes and the Registration Rights Agreement, such descriptions have been reviewed by it and are correct in all material respects. The opinion of ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP described in this Section may be limited to matters of New York, Federal and Delaware corporate law and shall be rendered to the Initial ~~Purchasers~~Purchasers at the request of the Company and shall so state therein. References to the Final Memorandum in this subsection (ab) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely as to matters of fact to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials which are furnished to the Initial Purchasers. (bc) ~~The~~ On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~▇, counsel for the Initial Purchasers~~, dated the Closing Date~~, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.P

Appears in 1 contract

Sources: Purchase Agreement (Carter William Co /Ga/)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Purchased Notes ~~shall,~~ on the Closing Date will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Business Loans and related Loan Files shall have been delivered to the Indenture Trustee pursuant to the Transfer and Servicing Agreement. (b) The Initial ~~Purchasers~~ Purchaser shall have received a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company~~certificate, dated the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Executive or Senior Vice President of the Company to the effect that such officer has carefully examined this Agreement, the Final Memorandum and the Transaction Documents and that: , to the best of such officer's knowledge (i) since the date information is given in the Final Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Business Loans except as contemplated by the Final Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct as of the Closing Date, (iii) the Company has ~~no reason~~ complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion)~~ the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or ~~the date of such opinion, included or includes~~ any Additional Offering Document contains an untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Class A Notes shall have been ~~duly organized~~ rated no less than "Aaa" by ▇▇▇▇▇'▇, "AAA" by S&P, and ~~are validly existing as corporations in good standing under~~ "AAA" by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than "Aa1" by ▇▇▇▇▇'▇, "AA" by S&P, and "AA" by Fitch and the Class C Notes shall have been rated no less than "A1" by ▇▇▇▇▇'▇, "A" by S&P and "A+" by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, Ernst & Young shall have furnished to the ~~best knowledge~~ Initial Purchaser an "agreed upon procedures" letter, dated the date of ~~such counsel~~delivery thereof, ~~any other security interests~~in form and substance satisfactory to the Initial Purchaser, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to ~~such legal matters, documents~~ certain financial and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in Purchaser shall have received an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, ~~such counsel may rely~~dated the Closing Date, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇ ▇~~▇▇ LLP~~. ~~An opinion of~~ ▇▇▇~~▇▇▇▇ LLP shall be delivered~~ , in-house counsel to the ~~Initial Purchasers and counsel for~~ Indenture Trustee, substantially in the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.form attached hereto as Exhibit A. (bf) ~~The~~ Initial ~~Purchasers~~ Purchaser shall have received ~~a legal~~ an opinion ~~from ▇▇▇▇▇▇~~ of ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~, counsel ~~for~~ to the ~~Initial Purchasers~~Company, ~~dated the Closing Date,~~ (i) with respect to certain ~~legal~~ corporate matters ~~relating~~ substantially in the form attached hereto as Exhibit B and (ii) with respect to ~~this Agreement~~ there being no consents required to transfer the business Loans substantially in the form attached hereto as Exhibit C. (g) The Initial Purchaser shall have received opinions of Winston & ▇▇▇▇▇▇, counsel to the Company, the Trust Depositor and ~~such other related matters~~ the Trust, (i) with respect to certain corporate, federal tax, securities law and investment company matters, substantially in the forms attached hereto as Exhibit D and (ii) with respect to certain "true sale," "non-consolidation" issues and "perfection issues" substantially in the forms attached hereto as Exhibit E. (h) The Initial ~~Purchasers may reasonably require. In rendering such opinion~~Purchaser shall have received opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ~~▇▇▇▇▇▇~~ & ~~▇▇▇▇▇▇▇ LLP shall have received~~ Finger, counsel to the Owner Trustee and ~~may rely upon such certificates~~ the Trust, (i) substantially in the forms attached hereto as Exhibit F, (ii) with respect to certain "trust issues" substantially in the form attached hereto as Exhibit G and ~~other documents and information~~ (iii) with respect to certain "perfection issues" substantially in the forms attached hereto as ~~it may reasonably request to pass upon such matters.~~Exhibit H. (ci) The Initial ~~Purchasers~~ Purchaser shall have received from ~~PricewaterhouseCoopers LLP~~ the Indenture Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Indenture Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchaser shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished ~~or caused to be furnished~~ to the Initial ~~Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ Purchaser and its ~~Chief Financial Officer~~ counsel such further information, certificates and documents as the Initial Purchaser and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial ~~Purchasers~~ Purchaser and its counsel. (l) All documents incident hereto and to the ~~effect that: (i)~~ Transaction Documents shall be reasonably satisfactory in form and substance to the ~~representations~~ Initial Purchaser and ~~warranties~~ its counsel, and the Initial Purchaser and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the ~~Company~~ conditions specified in this ~~Agreement are true and correct as if made on~~ Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the ~~Closing Date;~~ opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the ~~Company has performed~~ Initial Purchaser, this Agreement and all ~~covenants and agreements and satisfied all conditions on its part to~~ of the Initial Purchaser's obligations hereunder may be ~~performed or satisfied~~ canceled by the Initial Purchaser at or prior to delivery of and payment for the ~~Closing Date; and (ii) subsequent~~ Purchased Notes. Notice of such cancellation shall be given to the ~~respective dates as of which information is given~~ Company in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancewriting, or ~~from any labor dispute~~ by telephone or ~~any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change~~ facsimile confirmed in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)writing. (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (American Capital Strategies LTD)

Conditions of the Initial Purchasers’ Obligations. The ------------------------------------------------- obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇ ▇▇▇▇▇▇ ~~Chance US~~ & ▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance satisfactory for counsel to the Initial Purchaser, dated the Closing Date, substantially to the effect that: (i) ~~such counsel~~ The Company has ~~no reason to believe that (other than the financial statements~~ been duly incorporated and ~~other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as~~ each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have been duly organized and~~ Subsidiaries that are corporations or limited liability companies are validly existing ~~as corporations~~ and is in good standing as a corporation or limited liability company, as applicable, under the laws of ~~their respective jurisdictions~~ its jurisdiction of incorporation ~~and are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ or organization, with all ~~other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material~~ requisite corporate or limited liability ~~or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ company power and authority to ~~own, lease and operate their respective~~ own its properties and ~~assets~~ conduct its business as now conducted, and ~~conduct their respective businesses~~ as described in the Final Memorandum~~, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and~~ . (ii) All of the ~~Notes to be carried out by it; all of the issued and~~ outstanding shares of capital stock of ~~each~~ the Company and those Subsidiaries that are corporations as of the ~~Company’s significant subsidiaries~~Closing Date are duly authorized and validly issued, ~~except~~ are fully paid and nonassessable and were not issued in violation of any statutory preemptive rights; all of the outstanding ownership interests of all Subsidiaries that are limited liability companies will be duly authorized and validly existing and will not have been issued in violation of any statutory preemptive rights, or preemptive rights under the operating agreement or articles of organization of such limited liability companies. Except as ~~otherwise~~ set forth in the Final Memorandum, to our knowledge, there are ~~owned beneficially by~~ no outstanding (i) options, warrants or other rights to purchase from the Company ~~free~~ and ~~clear~~ the Subsidiaries, (ii) agreements or other obligations of the Company or any ~~perfected security interests or~~of the Subsidiaries to issue or (iii) other rights to convert any obligation into, to or exchange any securities of, shares of capital stock of, or other equity securities of, the ~~best knowledge~~ Company or any of ~~such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;~~the Subsidiaries. (iii) ~~the statements set forth~~ The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the ~~heading “Description of~~ Notes” . The Notes, when issued, will be substantially in the ~~Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and~~ form contemplated by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement . The Notes have been duly and validly authorized ~~by all necessary corporate action of the Company~~ and ~~the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and,~~ when ~~duly~~ executed and delivered by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Company, will entitle the holders to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. (iv) The Global Note (as such term is defined in the Indenture) is substantially in the form contemplated by the Indenture. (v) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture meets the requirements for qualification under the TIA. The Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming ~~the~~ due authorization, execution and delivery thereof by the Trustee~~), the Indenture will be~~ ) constitutes a ~~legal,~~ valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms (subject~~terms, except as ~~to enforcement of remedies, to applicable~~ the enforceability thereof may be limited by bankruptcy~~, reorganization~~, insolvency, ~~moratorium~~ fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors’ ' rights generally ~~from time to time in effect). The Indenture meets the requirements for qualification under the TIA~~and by general equitable principles. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private The Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes ~~and the Private Exchange Notes are~~ have been duly executed and delivered by the Company and authenticated by the Trustee in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming ~~the~~ due authorization, execution and delivery ~~of the Indenture~~ thereof by the ~~Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture~~Trustee), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, will entitle the holder to the benefits of the Indenture, and will be enforceable against the Company in accordance with their ~~terms (subject~~terms, except as ~~to enforcement of remedies, to applicable~~ the enforceability thereof may be limited by bankruptcy~~, reorganization~~, insolvency, ~~moratorium~~ fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors’ ' rights generally ~~from time to time in effect)~~and by general equitable principles. (~~viii~~vii) ~~the~~ The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement~~; the~~ . The Registration Rights Agreement has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by the Company (and, assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers)~~Purchaser, ~~will be~~ constitutes a ~~legal,~~ valid and legally binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its ~~terms (subject~~terms, except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder the enforceability thereof may be limited by ~~federal~~ bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors' rights generally and ~~state securities~~ by general equitable principles. (viii) Each of the Company and the Subsidiary Pledgor, as applicable, has all requisite corporate power and authority to execute, deliver and perform its obligations under the Pledge Agreement, dated the Closing Date, whereby the Company and the Subsidiary Pledgor pledge all of their Pledged Stock to the Collateral Agent for the benefit of the holders of the Notes. The Pledge Agreement has been duly and validly authorized, executed and delivered by the Company and the Subsidiary Pledgor and constitutes a valid and legally binding agreement of the Company and the Subsidiary Pledgor, as applicable, enforceable against them in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors' rights generally and ~~public policy considerations)~~by general equitable principles. (ix) Assuming receipt of consideration therefor and that the ~~execution~~ Subsidiary Guarantees are entered into for a valid corporate purpose, each of the Subsidiary Guarantors has all requisite corporate power and ~~delivery~~ authority to execute, deliver and perform its obligations under its respective Subsidiary Guaranty. Each Subsidiary Guaranty has been duly and validly authorized, executed and delivered by the applicable Subsidiary. (x) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly authorized, executed and delivered by the Company ~~of,~~ and the Subsidiaries. (xi) No consent, approval, authorization or order of any court or governmental agency or body or third party is required for the execution, delivery or performance by the Company or any Subsidiary of ~~its obligations under,~~ this Agreement, the Registration Rights ~~Agreement,~~ Agreement (except as may be required by the ~~Indenture and the Notes~~Securities Act, the Exchange ~~Notes~~ Act and the ~~Private Exchange Notes~~TIA as contemplated therein), the ~~issuance~~Indenture, ~~offering and sale of~~ the ~~Notes to~~ Subsidiary Guaranties or the ~~Initial Purchasers~~ Pledge Agreement, or the consummation by the Company ~~pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation~~ or any of the ~~other~~ Subsidiaries party thereto, as applicable, of the transactions ~~herein~~ contemplated ~~do not (x) require~~ hereby or thereby that are to be completed prior to or on the ~~consent, approval, authorization, registration or qualification of or with any governmental authority~~date hereof, except such as have been obtained or ~~made (and specified~~ disclosed in ~~such opinion)~~ the Final Memorandum or ~~such~~ as may be required by ~~the~~ state securities ~~or Blue Sky laws of the various states of the United States of America~~ laws. (xii) The execution, delivery and ~~other U.S. jurisdictions in connection with the offer and sale of the Notes~~ performance by the ~~Initial Purchasers~~ Company and ~~except those that may be required by~~ the ~~Act or~~ Subsidiaries party thereto, as applicable, of this Agreement, the ~~TIA in connection with the exchange offer contemplated by~~ Indenture, the Registration Rights Agreement, ~~or (y)~~ the Pledge Agreement and the Subsidiary Guaranties and the consummation by the Company and the Subsidiaries party thereto of the transactions contemplated hereby and thereby will not conflict with or constitute or result in a breach of or a default under (or an event which with notice or passage of time or both would constitute a default under) any material contract (relying as to materiality solely upon a certificate of officers of the Company identifying such contracts) or violation of any of the ~~terms and provisions of, or constitute a default under, any indenture, mortgage, deed~~ certificate of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents incorporation or by-laws (or similar organizational document) of the Company or any of ~~its significant subsidiaries~~the Subsidiaries, or or, to such counsel's knowledge, violate any ~~statute or any~~ statute, judgment, decree, order, rule or regulation ~~of any court or other governmental authority or any arbitrator known to such counsel and~~ applicable to the Company or ~~its significant subsidiaries;~~any of the Subsidiaries or any of their respective properties or assets. (xxiii) ~~the Company~~ To such counsel's knowledge, there is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or ~~threatened~~ threatened, any action, suit, proceeding, inquiry or investigation to which the Company or any of ~~its subsidiaries~~ the Subsidiaries is a party or to which the property or assets of the Company or any of ~~its subsidiaries~~ the Subsidiaries are subject, before or brought by any court, arbitrator or governmental agency or body which are reasonably likely to, individually or in the aggregate, have a Material Adverse Effect or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the Transactions. (xiv) The use of the proceeds of the Notes by the Company, as described in the Final Memorandum under the caption "Use of Proceeds," will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. (xv) There are no legal or governmental proceedings to which the Company or any Subsidiary is ~~subject that~~ a party which would be required to be described in a prospectus forming part of a registration statement filed with the Commission pursuant to the Securities Act that are not described in the ~~Final~~ Preliminary Memorandum ~~or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in~~ and the Final Memorandum. (~~xii~~xvi) ~~commencing with the Company’s taxable year ended December 31, 1998,~~ Neither the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act nor any of the ~~Notes~~ Subsidiaries is ~~required in connection with~~ or immediately after the sale of the Notes to ~~the Initial Purchasers as contemplated by this Agreement~~ be sold hereunder and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of ~~laws of any jurisdiction other than~~ the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection proceeds from such sale (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given described in the Final Memorandum ~~(exclusive~~ under the caption "Use of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (eProceeds") Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, will be an "investment company" as such term is defined ~~for purposes~~ in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder. (xvii) The Notes satisfy the eligibility requirements of Rule ~~436(g)(2~~144A(d)(3) under the Securities Act. (fxviii) The ~~Indenture shall have been executed~~ statements in the Final Memorandum under the caption "Description of Notes" and ~~delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the~~ "Exchange Offer and Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information Rights," insofar as they ~~may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with~~ describe the provisions ~~hereof only if they are satisfactory~~ of the documents and instruments therein described, constitute fair summaries thereof accurate in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably requestrespects.

Appears in 1 contract

Sources: Purchase Agreement (Mediaamerica Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes shall,~~ Units shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ an opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Ruskin, Moscou, Evans & Faltischek, P.C., counsel for the Company, in form and sub▇▇▇▇▇e ▇▇▇▇▇▇▇~~▇ Chance US LLP,~~ ▇▇▇ry to counsel for the ~~Company~~Initial Purchaser, ~~dated the Closing Date,~~ substantially to the effect that: (i) ~~such counsel has no reason~~ Each of the Company and its Subsidiaries is duly incorporated, validly existing and in good standing as a corporation under the laws of its jurisdiction of incorporation, with all requisite corporate power and authority to ~~believe that (other than the financial statements~~ own its properties and ~~other financial information contained therein~~conduct its business as now conducted, and as ~~to which such counsel need express no opinion)~~ described in the Final ~~Memorandum~~Offering Circular, ~~as of its date or~~ except (A) where the ~~date of such opinion~~failure to do so will not have a Material Adverse Effect; and (B) with respect to the need for Einstein Acquisition Corp. to become qualified in each jurisdiction in which Einstein/Noah Bagel Corp. and Einstein/Noah Bagel Partners, ~~included or includes any untrue statement of a material fact or omitted or omits~~ L.P. conducted business prior to ~~state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~▇▇▇ ▇▇▇e hereof. (ii) Except as set forth in the Final Offering Circular, to such counsel's knowledge, (A) no options, warrants or other rights to purchase from the Company any Equity Interests in the Company are outstanding, (B) no agreements, contracts, arrangements or other obligations of the Company to issue, or other rights granted by the Company to cause the Company to convert, any obligation into, or exchange any securities for, any Equity Interests in the Company are outstanding and (C) the Company is not obligated to have any of its securities registered under a registration statement filed by the Company under the Act with respect to any of the Securities pursuant to the Registration Rights Agreement, except that the holders of the Series F Preferred Stock will have the right to request inclusion in the shelf registration rights relating to the Warrants. (iii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Notes, the Warrants and the Transaction Documents. Each Subsidiary Guarantor has all requisite corporate power and authority to execute, deliver and perform its obligations under its Guarantee and the Indenture. (iv) The Notes have been duly and validly authorized and executed by the Company and, (A) when duly authenticated by the Trustee in accordance with the Indenture and when delivered by the Company and paid for by the Initial Purchaser in accordance with the terms of this Agreement, the Notes will constitute the valid and legally binding obligations of the Company and each of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the CompanySubsidiary Guarantors, enforceable in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, as insolvency (including all laws relating to ~~enforcement of remedies, to applicable bankruptcy~~fraudulent transfer), reorganization, ~~insolvency~~receivership, ~~moratorium~~ moratorium, or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect~~and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought; and (B) the holders of the Notes will be entitled to the benefits of the Indenture~~; no holder~~ . (v) The Guarantees have been duly and validly authorized and executed by each Subsidiary Guarantor, and when the Notes are duly authenticated and delivered in accordance with the Indenture and when delivered to and paid for by the Initial Purchaser in accordance with the terms of ~~securities~~ this Agreement, will constitute the valid and legally binding agreement of each Subsidiary Guarantor, enforceable in accordance with its terms except that the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the ~~Company has~~ court before which any ~~right which has not~~ proceeding therefor may be brought. (vi) The Exchange Notes and the Private Exchange Notes have been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated duly and validly authorized by the ~~Registration Rights Agreement;~~ Company, (~~vii~~A) and when the Exchange Notes and the Private Exchange Notes have been ~~duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are~~ duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Company and each of the Subsidiary Guarantors, enforceable in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, as insolvency (including all laws relating to ~~enforcement of remedies, to applicable bankruptcy~~fraudulent transfer), reorganization, ~~insolvency~~receivership, ~~moratorium~~ moratorium, or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time~~ and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought; and (B) the holders of the Exchange Notes and Private Exchange Notes will be entitled to ~~time in effect)~~the benefits of the Indenture. (~~viii~~vii) ~~the Company has all requisite corporate power and authority to execute, deliver and perform its obligations~~ The Indenture is in sufficient form for qualification under the ~~Registration Rights Agreement; the Registration Rights Agreement~~ TIA. The Indenture has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by the Company (and each of the Subsidiary Guarantors, and, assuming due authorization, execution and delivery ~~thereof~~ by the ~~Initial Purchasers~~Trustee, constitutes a valid and legally binding obligation of the Company and the Subsidiary Guarantors, enforceable against the Company and the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), ~~will~~ reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought. (viii) The Registration Rights Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a ~~legal,~~ valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal or state securities laws or public policy considerations. (ix) The Warrant Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, as insolvency (including all laws relating to ~~enforcement of remedies, to applicable bankruptcy~~fraudulent transfer), reorganization, ~~insolvency~~receivership, moratorium, or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought. (x) The Warrants have been duly and validly authorized and executed by the Company and, when duly countersigned by the Warrant Agent in accordance with the Warrant Agreement and delivered and paid for by the Initial Purchaser, will have been duly issued and delivered and will constitute valid and legally binding obligations of the Company, entitled to the benefits of the Warrant Agreement, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time~~ and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought, provided the holders of the company's warrants, other than the Warrants, have agreed not to ~~time~~ exercise such warrants until there is an amendment to the Certificate of Incorporation to increase the authorized common stock of the Company. (xi) When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants, the Warrant Shares will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights, provided the holders of the company's warrants, other than the Warrants, have agreed not to exercise such warrants until there is an amendment to the Certificate of Incorporation to increase the authorized common stock of the Company. (xii) This Agreement has been duly and validly authorized, executed and delivered by the Company. This Agreement constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency (including all laws relating to fraudulent transfer), reorganization, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and ~~except that~~ (ii) general principles of equity (whether applied by a court of law or equity) and discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal ~~and~~ or state securities laws ~~and~~ or public policy considerations). (ixxiii) The statements set forth in the ~~execution~~ Final Offering Circular under the captions "Description of Units", Description of Notes", "Description of Warrants" and ~~delivery by the Company of~~"Description of Capital Stock", and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale insofar as such statements purport to constitute a summary of the ~~Notes~~ legal matters and documents referred to therein, fairly summarize in all material respects the ~~Initial Purchasers by~~ legal matters and documents referred to therein. (xiv) To the ~~Company pursuant to this Agreement, the compliance by the Company with the other provisions~~ knowledge of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, except as ~~such term is defined~~ set forth in the ~~1940 Act; and (xi) such counsel does not know of any~~ Final Offering Circular, no legal or governmental actions, suits or proceedings are pending or threatened to which the Company or any of its ~~subsidiaries~~ Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary of ~~its subsidiaries~~ the Company is subject ~~that~~ which, if determined adversely to the Company or such Subsidiary, would ~~be required~~ result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be ~~described in a prospectus pursuant to~~ sold hereunder or the ~~Act that are not~~ consummation of the other transactions described in the Final ~~Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated~~ Offering Circular. (xv) Except as set forth in the Final ~~Memorandum~~Offering Circular, the execution and delivery of this Agreement and each of the Transaction Documents and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Units to the Initial Purchaser) will not conflict with or constitute or result in a material breach or violation of or a default under (or an event which with notice or passage of time or both would constitute a material default under) (i) any of the terms or provisions of (A) any indenture, mortgage, deed of trust, loan agreement, note, or (B) any material lease, license, franchise agreement, Permit, certificate, contract or other agreement or instrument to which the Company or any Subsidiary of the Company is a party, except, with respect to each of clauses (A) and (B) hereof, for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws of the Company, or (iii) any existing applicable Federal, New York or Delaware statute, law, rule or regulation, which are normally applicable to corporations such as the Company (other than the securities or blue sky laws of the various states, as to which, in each case, such counsel need express no opinion), or any judgment, order or decree of any court, governmental agency or body or arbitrator applicable to the Company, its Subsidiaries or any of their respective properties or assets, except for any such conflict, breach, violation, default or event would not, individually or in the aggregate, have a Material Adverse Effect. (~~xii~~xvi) ~~commencing with~~ To the ~~Company’s taxable year ended December 31~~knowledge of such counsel, ~~1998~~no consent, approval, authorization or order of any domestic governmental authority is required for the issuance and sale by the Company ~~was organized~~ of the Units to the Initial Purchaser or the other transactions contemplated hereby or by the Transaction Documents, except such as have previously been obtained and ~~has operated in conformity with the requirements for qualification~~ such as ~~a real estate investment trust (“REIT”)~~ may be required under ~~the Code, and the Company’s present and proposed method of operation~~applicable state securities or Blue Sky laws, as ~~represented by the Company, will permit the Company~~ to ~~continue~~ which such counsel need express no opinion pursuant to ~~so qualify~~this clause (xvi). (~~xiii~~xvii) ~~No registration under~~ Based upon the ~~Act~~ representations, warranties and agreements of the ~~Notes~~ Company in Sections 1 and 5 of this Agreement and of the Initial Purchaser in Section 8 of this Agreement, it is ~~required~~ not necessary in connection with the offer, sale and delivery of the ~~Notes~~ Units to the Initial ~~Purchasers as contemplated by~~ Purchaser under this Agreement ~~and the Final Memorandum~~ or in connection with the initial resale of ~~the Notes~~ such Units by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 4 of this ~~Agreement~~Agreement to register the Units under the Securities Act, ~~and prior~~ it being understood that no opinion is expressed as to any subsequent resale of any Unit. Prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA. (xviii) Neither the consummation of the transactions contemplated by this Agreement or any of the Transaction Documents nor the sale, issuance, execution or delivery of the Units will violate Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System. (xix) The provisions of the Pledge and Security Agreement are effective to create a legal, valid and enforceable security interest in all right, title and interest of the Issuer in and to the Collateral (as defined in the Pledge and Security Agreement), in favor of the Collateral Agent, for the benefit of the Secured Parties (as defined in the Pledge and Security Agreement), as security for the payment of the Obligations. (xx) When each ~~case~~ Grantor (as defined in the Pledge and Security Agreement) delivers to the Collateral Agent in the State of New York (for the benefit of the Secured Parties) the certificated Securities described in a schedule to the Pledge and Security Agreement (together with duly authorized and executed stock powers or other instruments of transfer executed in blank) (collectively, the Pledged Collateral), and, assuming ~~(i)~~ (A) ~~that~~ continued possession of the ~~purchasers who buy such Notes~~ Pledged Collateral by the Collateral Agent in the ~~initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or~~ State of New York and (B) that the ~~offer~~ Collateral Agent does not have notice prior to or ~~sale~~ on the date of the ~~Notes is made in an offshore transaction as defined in Regulation S, (ii)~~ delivery of such Pledged Collateral of any "adverse claim" within the ~~accuracy~~ meaning of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may relyUniform Commercial Code, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than in effect in the State of New York or (the ~~United States or~~ "N.Y. UCC"), the ~~General Corporation Law~~ Collateral Agent will be a "protected purchaser" as defined in Section 8-303(a) of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateN.Y. UCC. (bxxi) The ~~Initial Purchasers shall have received~~ UCC-1 Financing Statements described in a ~~legal~~ schedule to such opinion ~~from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP~~are in appropriate form and, ~~counsel for~~ when duly filed in each of the ~~Initial Purchasers, dated~~ States and with the ~~Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering~~ filing offices identified in such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given will result in the ~~Final Memorandum (exclusive~~ perfection of ~~any amendment or supplement thereto)~~all security interests in all Collateral which can be perfected under the Uniform Commercial Code, ~~neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire~~as in effect in such State, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.filing

Appears in 1 contract

Sources: Senior Secured Increasing Rate Notes Agreement (New World Coffee Manhattan Bagel Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- of the Initial Purchasers to purchase and pay for the ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇~~▇ Chance US~~ , LLP, counsel for the ~~Company~~Issuers and the local counsel listed in Schedule 3 attached hereto, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchasers, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have been~~ Subsidiaries is duly ~~organized and are~~ incorporated or organized, validly existing ~~as corporations~~ and in good standing under the laws of ~~their~~ its respective ~~jurisdictions~~ jurisdiction of incorporation or organization and ~~are~~ has all requisite corporate or organizational power and authority to own its properties and to conduct its business as described in the Final Memorandum. Each of the Company and the Subsidiaries is duly qualified to ~~transact~~ do business as a foreign ~~corporations and are~~ corporation in good standing ~~under the laws of~~ in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such ~~counsel has been advised that~~ qualification, except where the failure to be so qualified would ~~amount to a material liability~~ not, individually or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the ~~Final Memorandum~~aggregate, ~~and the~~ reasonably be expected to have a Material Adverse Effect. (ii) The Company has ~~corporate power to enter into this Agreement,~~ the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise authorized capitalization set forth in the Final Memorandum; all of the outstanding shares of capital stock or ownership interests of the Subsidiaries have been duly authorized and validly issued, are ~~owned beneficially~~ fully paid and nonassessable (other than partnership interest) and were not issued in violation of any preemptive or similar rights; all of the outstanding shares of capital stock or ownership interests of the Subsidiaries (except for Engineering Design Group, Inc.) are owned, directly or indirectly, by the ~~Company~~ Company, free and clear of ~~any~~ all perfected security interests orand, to the ~~best~~ knowledge of such counsel, ~~any~~ free and clear of all other ~~security interests,~~ liens, encumbrances, equities and claims or ~~claims, except for pledges~~ restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of ~~subsidiary stock under debt instruments;~~certain jurisdictions and other than liens pursuant to the Credit Agreement) or voting. (iii) ~~the statements~~ Except as set forth ~~under the heading “Description of Notes”~~ in the Final ~~Memorandum~~Memorandum (A) no options, ~~insofar as such statements purport~~ warrants or other rights to ~~summarize certain provisions~~ purchase from the Company or any Subsidiary shares of capital stock or ownership interests in the Company or any Subsidiary are outstanding other than pursuant to employee or director benefit plans, (B) no agreements or other obligations to issue, or other rights to convert any obligation into, or exchange any securities for, shares of capital stock of or ownership interests in the Company or any Subsidiary are outstanding and (C) no holder of securities of the ~~Notes and~~ Company or any Subsidiary is entitled to have such securities reg- istered under a registration statement filed by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus Company pursuant to the ~~Act and the Exchange Act and the respective rules and regulations thereunder;~~Registration Rights Agreement. (iv) ~~the execution and delivery of this Agreement have been duly authorized by all necessary corporate action~~ Each of the ~~Company~~ Issuers has all requisite corporate or organizational power and authority to execute, deliver and perform each of its respective obligations under the Indenture, the Notes, the Guarantees, the Exchange Notes and the ~~Agreement~~ Private Exchange Notes; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly ~~executed~~ and ~~delivered~~ validly authorized by ~~the Company; (v) the execution and delivery~~ each of the ~~Indenture have been duly authorized by the Company~~ Issuers and, when duly executed and delivered by each of the ~~Company~~ Issuers (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the ~~Indenture will be a legal,~~ valid and legally binding agreement of each of the ~~Company~~Issuers, enforceable against each of the Issuers in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (v) The Securities are in the form contemplated by the Indenture. The Notes and the Guarantees have been duly and validly authorized by the Company and the Guarantors, as applicable, and, when the Notes and the Guarantees are duly executed and delivered by the Company and each of the Guarantors, as applicable, the Securities are authenticated and delivered by the Trustee in accordance with the provisions of the Indenture (and assuming the due authorization, execution and delivery of the Securities by the Trustee in accordance with the Indenture) and the Securities are delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, the Securities will constitute the valid and legally binding obligations of the Company and each of the Guarantors, as applicable, entitled to the benefits of the Indenture, and enforceable against the Company and each of the Guarantors, as applicable, in accordance with ~~its terms~~ their terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance, moratorium or other similar laws ~~affecting~~ now or here- after in effect relating to creditors’ ' rights generally ~~from time to time in effect). The Indenture meets~~ and (ii) general principles of equity and the ~~requirements for qualification under~~ discretion of the ~~TIA~~court before which any proceeding therefor may be brought. (vi) The Exchange Notes and the Private Exchange Notes and the guarantees thereof by the Guarantors have been duly and validly authorized by ~~all necessary corporate action~~ the Company and each of the ~~Company~~ Guarantors, as applicable, and, on when the Exchange Notes and ~~as of~~ the ~~Closing Date,~~ Private Exchange Notes and the ~~Notes will~~ guarantees thereof by the Guarantors have been duly executed and delivered by the Company ~~and, assuming due authentication by the Trustee, will be the legal, valid~~ and ~~binding obligations~~ each of the ~~Company, enforceable in accordance with their terms (subject~~Guarantors, as ~~to enforcement of remedies~~applicable, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Company and each of the Guarantors, as applicable, entitled to the benefits of the Indenture, and enforceable against the Company and each of the Guarantors, as applicable, in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect)~~and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (~~viii~~vii) Each of the ~~Company~~ Issuers has all requisite corporate power and authority to execute, deliver and perform its respective obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by each of the ~~Company~~ Issuers and, when duly executed and delivered by each of the ~~Company~~ Issuers (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will ~~be a legal,~~ constitute the valid and legally binding agreement of each of the ~~Company~~Issuers, enforceable against each of the ~~Company~~ Issuers in accordance with its ~~terms~~ terms, except that (~~subject~~A) the enforcement thereof may be subject to (i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect~~ and ~~except that~~ (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (viii) Each of the Issuers has all requisite corporate power and authority to execute, deliver and perform its respective obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by each of the Issuers of the transactions contemplated hereby have been duly and validly authorized by each of the Issuers. This Agreement has been duly executed and delivered by each of the Issuers. (ix) The Indenture, the ~~execution~~ Securities and ~~delivery by the Company of, and the performance by the Company of its obligations under, this Agreement,~~ the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum. (x) No legal or governmental proceedings are pending or, to the knowledge of such counsel, threatened to which any of the Company or the Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary is subject which, if determined adversely to the Company or the Subsidiaries, would reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the Transactions. (xi) The execution, delivery and performance of this Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Registration Rights Agreement and the consummation of the ~~other~~ Transactions and the transactions ~~herein~~ contemplated ~~do not~~ hereby and thereby (~~x) require~~ including, without limitation, the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer issuance and sale of the ~~Notes by~~ Securities to the Initial ~~Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y~~Purchasers) will not conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms ~~and~~ or provisions ~~of, or constitute a default under,~~ of any ~~indenture, mortgage, deed of trust, lease or other material agreement or instrument,~~ Contract known to such ~~counsel, to~~ counsel (including in any event any of the foregoing which have been filed by the Company with the Commission), except for any such conflict, breach, violation, default or ~~any~~ event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) the certificate of ~~its significant subsidiaries is a party~~ incorporation or ~~by which the Company~~ bylaws (or ~~any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws~~ similar organizational document) of the Company or any of ~~its significant subsidiaries~~the Subsidiaries, or (iii) (assuming compliance with the Act with respect to the transactions contemplated by the Registration Rights Agreement and all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any ~~statute or any~~ statute, judgment, decree, order, rule or regulation ~~of any court or other governmental authority or any arbitrator~~ known to such counsel ~~and~~ to be applicable to the Company or ~~its significant subsidiaries;~~any of the Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (xxii) Assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company ~~is not an “investment company” and, after giving effect~~ of the Securities to the ~~Offering~~ Initial Purchasers, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, those which have previously been obtained and such as may be required in connection with the other Transactions. (xiii) The Company and the Subsidiaries have obtained all Permits necessary to conduct the businesses now or proposed to be conducted by them as described in the Final Memorandum, the lack of which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; each of the ~~Notes~~ Company and the ~~application~~ Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits, except where the failure to so fulfill or perform such obligations would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the ~~proceeds therefrom~~rights of the holder of any such Permit, ~~will not be an “investment company”~~except where such revocation, ~~as such term is defined~~ termination or impairment would not, individually or in the ~~1940 Act; and~~aggregate, reasonably be expected to have a Material Adverse Effect. (xixiv) To such ~~counsel does not know~~ counsel's knowledge, the Company and the Subsidiaries own or possess adequate licenses or other rights to use all patents, trademarks, service marks, trade names, copyrights and know-how ("Intellectual Property") necessary to conduct the businesses now or ----------------------- proposed to be operated by them as described in the Final Memorandum, except where the failure to own or possess such Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and none of the Company or the Subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any Intellectual Property which, if such assertion of infringement or conflict were sustained, would reasonably be expected to have a Material Adverse Effect. (xv) To the knowledge of such counsel, there are no legal or governmental proceedings ~~pending~~ involving or ~~threatened to which~~ affecting the Company or ~~any of its subsidiaries is a party or to which~~ the ~~property of the Company~~ Subsidiaries or any of ~~its subsidiaries is subject that~~ their respective properties or assets which would be required to be described in a prospectus pursuant to the Act that are not described in the Final ~~Memorandum or~~ Memorandum, nor are there any ~~statutes, regulations,~~ material contracts or other documents ~~that~~ which would be required to be described in a prospectus pursuant to the Act that are not described ~~or incorporated~~ in the Final Memorandum. (~~xii~~xvi) ~~commencing with the Company’s taxable year ended December 31, 1998,~~ None of the Company ~~was organized~~ or the Subsidiaries is, or immediately after the sale of the Securities to be sold hereunder and ~~has operated~~ the application of the proceeds from such sale (as described in ~~conformity with~~ the ~~requirements for qualification as a real estate investment trust (“REIT”)~~ Final Memorandum under the ~~Code~~caption "Use of Proceeds") will be, ~~and~~ an "investment company" as such term is defined in the ~~Company’s present and proposed method~~ Investment Company Act of ~~operation~~1940, as ~~represented by the Company, will permit the Company to continue to so qualify~~amended. (~~xiii~~xvii) No registration under the Act of the ~~Notes~~ Securities is required in connection with the sale of the ~~Notes~~ Securities to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the -26- initial resale of the ~~Notes~~ Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or (B) that the offer or sale of the Notes is made in an offshore ------ transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and ~~those~~ the representations, warranties and covenants of the Company contained in this Agreement regarding the ~~absence of a general solicitation in connection with the~~ sale of such ~~Notes~~ Securities to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (bxviii) ~~The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for~~ Neither the ~~Initial Purchasers, dated~~ consummation of the ~~Closing Date, with respect to certain legal matters relating to~~ transactions contemplated by this Agreement ~~and such other related matters as~~ nor the ~~Initial Purchasers may reasonably require~~sale, issuance, execution or delivery of the Securities will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. In rendering such opinion, ~~▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP~~ counsel for the Issuers shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters~~. (c) The Initial Purchasers~~ . At the time the foregoing opinion is delivered, ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP shall ~~have received from PricewaterhouseCoopers LLP a letter or letters dated~~additionally state that it has participated in conferences with officers and other representatives of the Issuers, ~~respectively,~~ representatives of the ~~date hereof and the Closing Date, in form and substance satisfactory to counsel~~ independent public accountants for the ~~Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate~~ Issuers, representatives of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers~~. The Company shall furnish~~ , at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the ~~Initial Purchasers such conformed copies~~ extent specified in subsection 7(a)(ix)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of ~~such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.~~a material fact or omitted to state a material fact required to be stated therein

Appears in 1 contract

Sources: Purchase Agreement (Building One Services Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ~~Chance US~~ LLP, counsel for MergerCo, or, as to such of the ~~Company~~following matters as EHI may request, ~~dated~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for EHI and the ~~Closing Date~~Subsidiary Guarantor, in form and substance satisfactory to counsel for the Initial Purchaser, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company MergerCo is duly incorporated and each of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ MergerCo, EHI and the ~~Exchange Act) have been duly organized and are~~ Subsidiary is a validly existing ~~as corporations~~ corporation in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation~~ incorporation, with all requisite corporate power and ~~are~~ authority to own its properties and conduct its business as now conducted and as described in the Final Memorandum; each of MergerCo, EHI and the Subsidiary is duly qualified to ~~transact~~ do business as a foreign ~~corporations~~ corporation and ~~are~~ is in good standing ~~under the laws of~~ in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such ~~counsel has been advised that~~ qualification, except where the failure to be so qualified ~~would amount~~ or be in good standing could not reasonably be expected to have, individually or in the aggregate, a ~~material liability or disability to~~ Material Adverse Effect. (ii) All of the ~~Company~~ outstanding shares of the Subsidiary are owned by EHI. (iii) MergerCo and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries~~ EHI have ~~full~~ all requisite corporate power and authority to ~~own~~execute, ~~lease~~ deliver and ~~operate~~ perform their respective ~~properties~~ obligations under the Notes, the Exchange Notes and ~~assets and conduct their respective businesses as described~~ the Private Exchange Notes. The Notes are in the ~~Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and~~ form contemplated by the Indenture and ~~to carry out all~~ the ~~terms and provisions hereof and thereof and~~ Supplemental Indenture. Each of the ~~Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries~~Notes, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes ~~have~~ has been duly and validly authorized by and, in the ~~Company~~case of the Notes, ~~and when the Exchange Notes and the Private Exchange Notes are duly~~ executed and delivered by ~~the Company in accordance with the terms of the Registration Rights Agreement and the Indenture~~ EHI (assuming ~~the due authorization, execution and delivery of the Indenture by the Trustee and due~~ authentication ~~and delivery of the Exchange Notes and the Private Exchange Notes~~ by the Trustee in accordance with the ~~Indenture)~~provisions of the Indenture and, in the case of the Notes, delivery to and payment for by the Initial Purchaser in accordance with the terms of this Purchase Agreement) and constitute or, in the case of such Exchange Notes or Private Exchange Notes, will ~~be the legal,~~ constitute valid and legally binding obligations of MergerCo and EHI, entitled to the ~~Company,~~ benefits of the In- denture and enforceable against MergerCo and EHI in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ A) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other laws affecting creditors’ ' rights ~~generally from time~~ generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to ~~time in effect)~~shareholders, or (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing. (~~viii~~iv) ~~the Company~~ The Subsidiary Guarantor has all requisite corporate power and authority to execute, deliver and perform its obligations under the ~~Registration Rights Agreement; the Registration Rights Agreement~~ Guarantee. The Guarantee has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by the ~~Company~~ Subsidiary Guarantor and constitutes the valid and legally binding obligation of the Subsidiary Guarantor, entitled to the benefits of the Indenture and enforceable against the Subsidiary Guarantor in accordance with its terms, except that the enforcement thereof may be subject to (~~assuming~~ A) bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, or (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing. (v) MergerCo and EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their respective obligations under the Indenture. The Indenture conforms in all material respects with the provisions of the TIA applicable to an indenture which is qualified thereunder. The Indenture has been duly and validly authorized, executed and delivered by MergerCo. The Supplemental Indenture has been duly and validly authorized, executed and delivered by each of EHI and the Subsidiary Guarantor. The Indenture as supplemented by the Supplemental Indenture (assuming, in each case, the due authorization, execution and delivery thereof by the ~~Initial Purchasers~~Trustee), ~~will be~~ constitutes a ~~legal,~~ valid and legally binding ~~agreement~~ agreement, in the case of the ~~Company~~Indenture, of MergerCo and, in the case of the Indenture and the Supplemental Indenture, of EHI and the Subsidiary Guarantor, enforceable against MergerCo, EHI and the ~~Company~~ Subsidiary Guarantor, respectively, in accordance with ~~its terms~~ their respective terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ A) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other laws affecting creditors’ ' rights ~~generally from time~~ generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to ~~time~~ shareholders, or (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing. (vi) MergerCo and EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their respective obligations under the Registration Rights Agreement. The Registration Rights Agreement has been duly and validly authorized by MergerCo and EHI and the Subsidiary Guarantor. The Registration Rights Agreement has been duly and validly executed and delivered by MergerCo and assumed by each of EHI and the Subsidiary Guarantor, and constitutes a valid and legally binding agreement of MergerCo, EHI and the Subsidiary Guarantor, enforceable against MergerCo and EHI and the Subsidiary Guarantor, respectively, in ~~effect and~~ accordance with its terms, except that (A) the enforcement thereof may be subject to (1) bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, or (2) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (vii) MergerCo and EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their obligations under this Purchase Agreement and to consummate the transactions contemplated hereby. This Purchase Agreement and the transactions contemplated hereby have been duly and validly authorized by MergerCo and EHI and the Subsidiary Guarantor. This Purchase Agreement has been duly and validly executed and delivered by MergerCo. (viii) EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their obligations under the Assumption Agreement and to consummate the transactions contemplated thereby. The Assumption Agreement and the transactions contemplated thereby have been duly and validly authorized, executed and delivered by each of EHI and the Subsidiary Guarantor and constitutes a valid and legally binding agreement of EHI and the Subsidiary Guarantor, enforceable against EHI and the Subsidiary Guarantor in accordance with its terms, except that (A) the enforcement thereof may be subject to (1) bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, or (2) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing. (ix) The statements set forth under the ~~execution~~ heading "Employment Agreements" under the caption "Management," under the headings "Management Agreement" and ~~delivery by~~ "Shareholders Agreement" under the ~~Company of~~caption "Certain Relationships and Related Transactions," and under the captions "Description of Notes," "Description of New Credit Facility," "Description of Redeemable Preferred Stock and Warrants," and "Exchange Offer; Registration Rights" in the Final Memorandum, ~~and~~ insofar as such statements purport to summarize certain provisions of the ~~performance by the Company of its obligations under~~Employment Agreements, ~~this~~ Management Agreement, ~~the~~ Shareholders Agreement, Indenture, Securities, Exchange Notes, Private Exchange Notes, Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (Series A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (Power Ten)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes shall,~~ Securities to be ~~subject~~purchased by it on the Closing Date hereunder are subject to the fulfillment, in ~~the~~ such Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following ~~additional~~ conditions: (a) At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for those purposes shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. No order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. (b) On the Closing Date, the Company shall have delivered to the Initial Purchasers ~~shall have received~~ a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~true, ~~counsel for~~ correct and complete copy of the credit agreement (the "Credit Agreement") dated as of July 7, 1998 by and among the Company, ~~dated~~ the Guarantors, the lenders party thereto in their capacities as lenders thereunder and First Union National Bank, as agent; on and as of the Closing ~~Date,~~ Date (after giving effect to the ~~effect that:~~consummation of the transactions contemplated by this Agreement), there shall not exist any condition which would constitute a Default or an Event of Default (as defined in the Credit Agreement). (c) Subsequent to the date hereof, (i) ~~such counsel has no reason to believe that~~ except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (~~other than~~ financial or other), business, prospects, properties, assets, net worth or results of operations of the ~~financial statements~~ Company and ~~other financial information contained therein~~the Subsidiaries, taken as ~~to which such counsel need express no opinion~~a whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) the ~~Final Memorandum, as of its date or the date of such opinion, included or includes~~ Offering Memorandum shall not contain any untrue statement of a material fact or ~~omitted or omits~~ omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~. (ii)~~ , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to ~~transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where~~ correct any such ~~counsel has been advised that the failure to be so qualified would amount to a material liability~~ misstatement or ~~disability to the Company and its subsidiaries~~omission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers~~’ representations in Section 8 and those~~ , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateSecurities. (bd) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion from each of Edwa▇▇▇ & ▇nge▇▇ ▇▇▇ Wellesley Law Associates, counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, substantially in the form of, respectively, EXHIBIT B-1 and EXHIBIT B-2 hereto. (e) The Initial Purchasers shall have received on the Closing Date an opinion of Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters., (cf) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP a letter or~~ "cold comfort" letters ~~dated~~addressed to the Initial Purchasers, ~~respectively,~~ and dated the date hereof and the Closing Date, from Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, substantially in ~~form and substance satisfactory to counsel for~~ the forms heretofore approved by the Initial Purchasers. (di) There shall not have been any change in the capital stock of the Company or any Subsidiary nor any material increase in the short-term or long-term debt of the Company or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole; (iii) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; and (iv) the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of each of the Company and the Guarantors (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(g) and in Section 7(h) hereof. (h) The Company and the Guarantors shall not have failed at or prior to the Closing Date to have performed or complied with any of their respective agreements herein contained and required to be performed or complied with by them hereunder at or prior to the Closing Date. (i) There shall not have been any announcement by any "nationally recognized statistical rating (j) The Securities shall have been approved for trading on PORTAL. (k) The Company shall have taken all necessary acts to (i) repay all of the indebtedness for money borrowed of the Company and the Subsidiaries indicated as being repaid in the Offering Memorandum under the caption "Selected Pro Forma Financial Data" immediately prior to the issuance of the Securities and (ii) terminate the related credit agreements. (l) The Company shall have received a solvency opinion from Houlihan, Lokey, Howa▇▇ & ▇ukin Financial Advisors, Inc., which solvency opinion shall be in form and substance reasonably satisfactory to the Initial Purchasers. (m) The Company and the Guarantors shall have furnished or caused to be furnished to the Initial Purchasers ~~at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ such further certificates and ~~its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct~~ customary closing documents as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably ~~requested from the Company~~requested. All such opinions, certificates, letters and other documents ~~delivered pursuant to this Agreement~~ will ~~comply~~ be in compliance with the provisions hereof only if they are reasonably satisfactory in ~~all material respects~~ form and substance to the Initial ~~Purchasers~~ Purchasers. Any certificate or document signed by any officer of the Company or a Guarantor and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers~~. The~~ , shall be deemed a representation and warranty by the Company ~~shall furnish~~ or such Guarantor to the Initial Purchasers ~~such conformed copies of such opinions, certificates, letters, and documents in such quantities~~ as to the ~~Initial Purchasers shall reasonably request~~statements made therein.

Appears in 1 contract

Sources: Purchase Agreement (Simonds Industries Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Paul, Hastings, Janofsky & Walker LLP, counsel for the Company, in form and substance ▇▇▇▇▇▇▇~~▇ Chance US LLP,~~ ▇ly ▇▇▇▇▇▇actory to counsel for the ~~Company, dated the Closing Date~~Initial Purchasers, to the effect that: (i) ~~such counsel has no reason to believe that (other than the financial statements and other financial information contained therein~~The Company is duly incorporated, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation~~ incorporation, and ~~are duly qualified~~ has all requisite corporate power and authority to ~~transact~~ own its properties and to conduct its business as ~~foreign corporations~~ described in the Final Memorandum. Each of the Subsidiaries listed on Schedule 3 hereto (such subsidiaries, the "Significant Subsidiaries") is validly existing and ~~are~~ in good standing under the laws of its respective jurisdiction of incorporation, formation or organization, as the case may be, and has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite power and authority (corporate and other) to ~~own, lease and operate their respective~~ own its properties and ~~assets~~ conduct its business as now conducted and ~~conduct their respective businesses~~ as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;. (~~iii~~ii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action Each of the Company and the ~~Agreement~~ Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction listed on a schedule to such opinion. (iii) The Company and each Significant Subsidiary, as applicable, has all requisite corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the Private Exchange Notes; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly ~~executed~~ and ~~delivered by the Company; (v) the execution and delivery of the Indenture have been duly~~ validly authorized by the Company and each Significant Subsidiary and, when duly executed and delivered by each of the ~~Company~~ Issuers (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the ~~Indenture will be a legal,~~ valid and binding agreement of each of the Company and each Significant Subsidiary, enforceable against the Company and each of the Significant Subsidiaries in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance and transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance. (iv) The Notes are substantially in the form attached to the Indenture. The Notes have each been duly and validly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with ~~its terms~~ their terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance and transfer, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to ~~time in effect). The Indenture meets~~ limit the ~~requirements for qualification under the TIA~~availability of equitable remedies such as specific performance. (viv) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance and transfer, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to ~~time in effect)~~limit the availability of equitable remedies such as specific performance. (~~viii~~vi) The Guarantees are substantially in the form attached to the Indenture. The Guarantees and the guarantees of the Exchange Notes and the Private Exchange Notes have been duly and validly authorized by each Significant Subsidiary and, when executed by each of the Subsidiary Guarantors and when the Notes are duly executed and delivered against payment therefor and are authenticated by the Trustee in accordance with the provisions of the Indenture, such Guarantees and such guarantees of the Exchange Notes will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of each Significant Subsidiary, entitled to the benefits of the Indenture and enforceable against the Subsidiary Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance and transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance. (vii) Each of the Company and the Significant Subsidiaries has all requisite ~~corporate~~ corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the Company and, when duly executed and delivered by each of the ~~Company~~ Issuers (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will ~~be a legal,~~ constitute the valid and legally binding agreement of each of the ~~Company~~Company and each Significant Subsidiary, enforceable against the Company and each Significant Subsidiary in accordance with its ~~terms~~ terms, except that (~~subject~~A) the enforcement thereof may be subject to (i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance and transfer, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect~~ and ~~except that~~ (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy ~~considerations)~~considerations including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance. (viii) Each of the Company and the Significant Subsidiaries has all requisite corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company and each of the Significant Subsidiaries of the transactions contemplated hereby have been duly and validly authorized by the Company and each of the Significant Subsidiaries. This Agreement has been duly executed and delivered by the Company and each of the Significant Subsidiaries. (ix) The Indenture, the ~~execution and delivery by~~ Notes, the ~~Company of,~~ Guarantees and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum. (x) The execution, delivery and performance ~~by the Company~~ of ~~its obligations under,~~ this Agreement, the Indenture, the Registration Rights ~~Agreement~~Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the ~~Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering~~ issuance and sale of the Notes to the Initial ~~Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do~~ Purchasers) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms ~~and~~ or provisions ofof any Material Contract, except for any such conflict, breach, violation, default or ~~constitute~~ event that would not, individually or in the aggregate, have a ~~default under~~Material Adverse Effect, ~~any indenture, mortgage, deed~~ (ii) the certificate of ~~trust, lease~~ incorporation or ~~other material agreement~~ bylaws (or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws similar organizational document) of the Company or any of ~~its significant subsidiaries~~the Significant Subsidiaries, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any ~~statute~~ U.S. federal, New York or ~~any~~ California State or Delaware General Corporation Law statute, judgment, decree, order, rule or regulation ~~of any court or other governmental authority or any arbitrator~~ known to such counsel ~~and~~ to be applicable to the Company or ~~its significant subsidiaries;~~any of the Significant Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect. For purposes hereof, a "Material Contract" means the agreements and instruments listed on a schedule to such opinion. (xxi) No consent, approval, authorization or order of any U.S. federal or New York or California State governmental authority is required for the issuance and sale by the Company ~~is not an “investment company” and, after giving effect to the Offering~~ of the Notes to the Initial Purchasers or the consummation by the Company of the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained. (xii) None of the Company or any Significant Subsidiary is, and immediately following the consummation of the transactions contemplated by this Agreement and the application of the net proceeds ~~therefrom, will not be an “investment company”, as such term is defined in~~ from the ~~1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property~~ sale of the ~~Company or any of its subsidiaries is subject that would be required to be described in a prospectus~~ Notes pursuant to ~~the Act that are not~~ this Agreement (as described in the Final Memorandum ~~or any statutes~~under the caption "Use of Proceeds") will be, ~~regulations, contracts or other documents that would be~~ an "investment company" required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) registered under the ~~Code, and the Company’s present and proposed method~~ Investment Company Act of ~~operation~~1940, as ~~represented by the Company, will permit the Company to continue to so qualify~~amended. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. ~~In rendering any such opinion~~At the time the foregoing opinion is delivered, ~~such counsel may rely~~Paul, ~~as to matters of fact~~Hastings, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Janofsky & Walker LLP shall additionally state that it has participate▇ ▇▇ ▇▇▇fer▇▇▇▇▇ ~~LLP. An opinion~~ with officers and other representatives of ~~▇▇▇▇▇▇▇ LLP shall be delivered to~~ the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchasers and counsel for the Initial ~~Purchasers covering~~ Purchasers, at which conferences the contents of the Final Memorandum and related matters ~~reasonably requested by~~ were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the ~~Initial Purchasers~~accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(ix)), on the basis of the foregoing (relying as to materiality to a certain extent upon the opinions of officers and other representatives of the Company and its Subsidiaries) no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need make no statement with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Company's books and records included in the Final Memorandum). The opinion of Paul, Hastings, Janofsky & Walker LLP described in this Section shall be rendered to t▇▇ ▇▇▇▇▇al ▇▇▇▇▇▇sers at the request of the Company and shall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) ~~The~~ On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon & Reindel, counsel for the Initial Purchasers, with resp▇▇▇▇▇ ▇▇ ▇▇▇▇▇~~▇ &~~ ▇▇▇n l▇▇▇▇ ~~LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters~~ ▇▇tters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Cahill Gordon & Reindel shall have received and may rely upon such cer▇▇▇▇▇▇▇▇▇ ▇▇▇ ot▇▇▇ ▇▇▇~~▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents~~ uments and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Independent Accountants a comfort letter or letters ~~dated, respectively,~~ dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the ~~Company~~ Issuers contained in this Agreement ~~are~~ shall be true and correct ~~as if made~~ or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on ~~and as~~ the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date; ~~and~~ the ~~Company has~~ Issuers shall have performed or complied with all covenants and agreements and satisfied all conditions on ~~its~~ their part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except ~~in each case~~ as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.described

Appears in 1 contract

Sources: Purchase Agreement (Dole Food Company Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation of the~~ Initial ~~Purchasers~~ Purchasers' obligations to purchase and pay for the Notes ~~shall,~~ shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to (i) the accuracy of the representations and warranties of the Company and the Guarantor herein contained ~~herein~~ as of the date hereof and as of ~~each~~ the Closing Date, ~~as if made on and as of each Closing Date~~(ii) the absence in any certificates, opinions, written statements or letters furnished pursuant to this Section 6 to the ~~accuracy~~ Initial Purchasers or to their counsel, of any qualification or limitation not previously approved by the ~~statements of the Company’s officers made pursuant to the provisions hereof~~Initial Purchasers, to (iii) the performance by the Company and the Guarantor of ~~its covenants~~ their obligations hereunder required to be performed on or prior to the Closing Date, and ~~agreements hereunder and to~~ (iv) the following additional conditions: (a) Since the date of the latest balance sheet included in the Definitive Memorandum: (i) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company or the Guarantor from that set forth in or contemplated by the Definitive Memorandum, (ii) the Company shall have no liability or obligation, direct or contingent, that is material to the Company and the Guarantor, taken as a whole, other than those reflected in the Definitive Memorandum; and (iii) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the financial condition, business, properties, prospects, oil and gas reserves, net worth or results of operations of the Company and the Guarantor taken as a whole, except, in each case, as expressly described in the Definitive Memorandum. (b) The representations and warranties made by the Company and the Guarantor herein shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; and the Company and the Guarantor shall have complied in all material respects with all agreements hereunder required to be performed by the Company and the Guarantor. (c) As to each Initial Purchaser, the purchase of and payment for the Notes to be purchased by such Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation, order or other restriction. (d) The Definitive Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York time, on the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may agree, and no stop order suspending the qualification or exemption from qualification of the Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (e) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Notes; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company and the Guarantor, threatened against, the Company, the Guarantor or any of their respective subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably by expected to have a Material Adverse Effect, on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries taken as a whole. (f) On the Closing Date, the Initial Purchasers shall have received ~~a legal~~ the opinion ~~from ▇~~of Stra▇▇▇▇▇▇▇ ~~Chance US LLP~~& ▇rice, L.L.P., counsel ~~for~~ to the Company, dated the Closing Date, addressed to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial ~~Purchasers to the effect that: (i) the representations and warranties of the Company~~ Purchasers' counsel, substantially as set forth in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties theretoExhibit A hereto. (g) On the Closing Date, the Initial Purchasers shall have received a certificate, dated the ~~Registration Rights Agreement executed~~ Closing Date, signed by each of the Chairman of the Board and Chief Financial Officer or the President and the Chief Financial Officer of the Company and the Guarantor, and such ~~agreement shall be~~ other certificates of executive officers as the Initial Purchasers may specify confirming the matters set forth in ~~full force~~ paragraphs (a) and ~~effect at all times from and after the Closing Date~~(b) of this Section 6. (h) On ~~or before~~ the Closing Date, the Initial Purchasers shall have received from Andr▇▇▇ & ▇urt▇ ▇.▇.P., an opinion, dated the Closing Date, addressed to the Initial Purchasers, with respect to the Company, the Guarantor, the Offering Memorandum, the offer, sale and ~~counsel for~~ resale of the (i) Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from Ernst & Young LLP, and on the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP, a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. (j) Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from NSA, and on the Closing Date, the Initial Purchasers shall have received from NSA, a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. (k) On the Closing Date, the Company and the Guarantor shall have executed and delivered the Registration Rights Agreement and the Indenture. (l) On or prior to the Closing Date, the Revised Credit Facility shall have been executed and delivered by the Company and the banks executing same. (m) Prior to the Closing Date, the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers reasonably may request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, ~~documents or other information as they may have reasonably requested from the Company. All~~ opinions, ~~certificates,~~ written statements or letters ~~and documents delivered~~ furnished to the Initial Purchasers or to their counsel pursuant to this ~~Agreement will comply with the provisions hereof only if they are~~ Section 6 shall not be reasonably satisfactory in form and scope in all material respects to the Initial Purchasers and ~~counsel for~~ to their counsel, all of the Initial Purchasers' obligations hereunder may be cancelled by them at, or at any time prior to, the Closing Date. ~~The Company~~ Notice of such cancellation shall ~~furnish~~ be given to the ~~Initial Purchasers such conformed copies of such opinions~~Company and the Guarantor in writing or by telephone, ~~certificates~~telecopy, ~~letters~~telex or telegraph, ~~and documents~~ confirmed in ~~such quantities as the Initial Purchasers shall reasonably request~~writing.

Appears in 1 contract

Sources: Purchase Agreement (National Energy Group Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser hereunder are subject to ~~purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to~~ (i) the accuracy of the representations and warranties ~~of the Company~~ contained herein ~~as of~~ on the date hereof (if applicable) and ~~as of each~~ at the Closing ~~Date~~Time, ~~as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to~~ (ii) the performance by the ~~Company~~ Sponsor of its ~~covenants and agreements~~ obligations hereunder and to (iii) compliance with the following additional ~~conditions~~conditions precedent no later than on [•]: (a) On The Sponsor shall furnish to the Initial Purchaser at the Closing ~~Date~~Time an opinion of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Sponsor, addressed to the Initial ~~Purchasers~~ Purchaser, and dated the Closing Time, in substantially the form set forth in Exhibit A attached hereto. (b) The Sponsor shall ~~have received a legal~~ furnish to the Initial Purchaser at the Closing Time an opinion ~~from~~ of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ~~Chance US LLP~~& Finger, P.A. , counsel for the ~~Company~~Sponsor, addressed to the Initial Purchaser, and dated the Closing ~~Date~~Time, in substantially the form set forth in Exhibit B attached hereto. (c) The Registration Statement shall have been declared effective. (d) Prior to the ~~effect that:~~ Closing Time, (i) ~~such counsel has~~ no ~~reason~~ stop order with respect to ~~believe that~~ the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act, (~~other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion~~ii) the ~~Final Memorandum, as of its date or the date of such opinion, included or includes any~~ Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or ~~omitted or omits~~ omit to state ~~any~~ a material fact required to be stated therein or necessary ~~in order~~ to make the statements therein not misleading and (iii) the Prospectus and all amendments or supplements thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they ~~were~~ are made, not misleading. (iie) Between the ~~Company and each~~ time of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the ~~consummation~~ Closing Time, no material adverse change or any development involving a prospective material adverse change in the management or financial condition of the ~~other transactions herein contemplated do not (x) require the consent, approval, authorization, registration~~ Sponsor shall occur or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumbecome known. (~~xii~~f) ~~commencing with~~ The Sponsor will, at the ~~Company~~Closing Time, deliver to the Initial Purchaser an officer’s ~~taxable year ended December 31, 1998,~~ certificate in the ~~Company was organized and has operated in conformity with the requirements for qualification~~ form attached as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualifyExhibit C hereto. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (bg) The ~~Initial Purchasers~~ Sponsor shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial ~~Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ Purchaser such other documents and ~~its Chief Financial Officer satisfactory~~ certificates as to the ~~Initial Purchasers to~~ accuracy and completeness of any statement in the ~~effect that: (i)~~ Registration Statement and the ~~representations and warranties of the Company in this Agreement are true and correct as if made on and~~ Prospectus as of the Closing ~~Date; and~~ Time, as the ~~Company has performed all covenants and agreements and satisfied all conditions~~ Initial Purchaser may reasonably request. (h) The Shares shall have been approved for listing on ~~its part~~ the Exchange, subject to ~~be performed or satisfied~~ notice of issuance at or prior to the Closing ~~Date; and (ii) subsequent to~~ Time. In the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change event that ~~does not indicate the direction of the possible change, in the rating accorded~~ any of the ~~Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes~~ foregoing conditions precedent have not been met or waived within the time indicated in the opening paragraph of ~~Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date~~section ‎6 hereof, the Initial ~~Purchasers shall have received~~ Purchaser may in its sole discretion elect to surrender the ~~Registration Rights Agreement executed~~ Purchased Shares to the Trust for redemption in compliance with the provisions of the Trust Agreement, and upon receipt by the ~~Company~~ Initial Purchaser of the Initial Deposit and ~~such agreement~~ any expenses payable to the Initial Purchaser pursuant to section ‎5 of this Agreement, this Agreement shall be ~~in full~~ of no further force and effect at and all ~~times from~~ obligations of the parties hereunder shall be discharged; provided, that obligations of the parties arising under sections ‎4(k), ‎5 and ~~after~~ ‎9 shall survive the ~~Closing Date~~termination of this Agreement. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Initial Purchaser Agreement (JPM XF Physical Copper Trust)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from ▇~~the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇▇ ~~Chance US~~ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, ~~dated~~ in form and substance reasonably satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, substantially to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and ~~each~~ Subsidiaries of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X~~ the Company that are organized under the ~~Exchange Act~~laws of the state of Delaware (each a “Delaware Subsidiary” and collectively, the “Delaware Subsidiaries”) ~~have been duly organized and are~~ is validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ the state of ~~incorporation~~ Delaware and ~~are duly qualified to transact business as foreign corporations and are in good standing under~~ has the ~~laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material~~ requisite corporate or limited liability ~~or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ company power and authority to ~~own, lease and operate their respective~~ own its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the Final Memorandum. Relying solely on good standing certificates issued by the secretaries of state, ~~and~~ the Company ~~has corporate power~~ and each Delaware Subsidiary is duly qualified to ~~enter into this Agreement~~do business as a foreign corporation or limited liability company, as the case may be, in good standing in the jurisdictions set forth opposite its name on a schedule annexed to such opinion as of the dates set forth on such schedule. (ii) Based solely on such counsel’s review of the membership interest transfer ledger of CHAAS Holdings, LLC (the “Parent”), the ~~Registration Rights Agreement~~ Parent has the issued and outstanding capitalization set forth in the ~~Indenture~~ first paragraph under the heading “Security Ownership of Certain Beneficial Owners and ~~to carry out all~~ Management” in the ~~terms and provisions hereof and thereof and of the Notes to be carried out by it~~Final Memorandum; all of the ~~issued and~~ outstanding ~~shares of capital stock of each~~ equity interests of the ~~Company’s significant subsidiaries~~Company and the Delaware Subsidiaries reflected in the stock or membership interest transfer ledgers of the Company and such Delaware Subsidiaries have been validly issued, and are fully paid and nonassessable and, to the knowledge of such counsel, were not issued in violation of any contractual preemptive or similar rights; except as ~~otherwise~~ disclosed in the Final Memorandum, based solely on such counsel’s review of the membership interest transfer ledger or stock transfer ledger of the Company and the Delaware Subsidiaries, as applicable, all of the outstanding equity interests of the Company and the Delaware Subsidiaries are owned of record, directly or indirectly, by the Parent, and, to such counsel’s knowledge, other than a pledge of the outstanding equity interests of the Delaware Subsidiaries to the lenders under the Credit Agreement, free and clear of all perfected security interests. (iii) Except as set forth in the Final Memorandum, ~~are owned beneficially by the Company free and clear of any perfected security interests or,~~ to the ~~best~~ knowledge of such counsel, no holder of securities of the Company or any Delaware Subsidiary (other ~~security interests~~than a holder of Securities, ~~liens, encumbrances, equities~~ Exchange Notes or ~~claims, except for pledges of subsidiary stock~~ Private Exchange Notes) is entitled to have such securities registered under ~~debt instruments;~~a registration statement filed by the Company pursuant to the Registration Rights Agreement. (~~iii~~iv) ~~the statements set forth~~ The Company has all requisite corporate power and authority to execute and deliver and perform its obligations under the ~~heading “Description of Notes” in~~ Indenture, the ~~Final Memorandum~~Securities, ~~insofar as such statements purport to summarize certain provisions of~~ the Exchange Notes and the ~~Indenture, provide a fair summary of such provisions~~Private Exchange Notes; ~~and~~ the ~~statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar~~ Indenture complies as ~~such statements constitute a summary of the legal matters, documents or proceedings referred~~ to ~~therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings~~ form in all material respects ~~as would be required to be disclosed in a prospectus pursuant to~~ with the ~~Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action~~ requirements of the ~~Company and~~ TIA; the ~~Agreement~~ Indenture has been duly ~~executed~~ and ~~delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and~~validly authorized, ~~when duly~~ executed and delivered by the Company and (assuming the due authorization, execution and delivery thereof by the Trustee), ) constitutes the ~~Indenture will be a legal,~~ valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ rights generally ~~from time to time in effect). The Indenture meets~~ and (ii) general principles of equity and the ~~requirements for qualification under~~ discretion of the ~~TIA~~court before which any proceeding therefor may be brought. (viv) The Securities are in the ~~Notes~~ form contemplated by the Indenture. The Securities have each been duly ~~authorized by all necessary corporate action of the Company and~~and validly authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company and, when paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Securities by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder~~ , and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of ~~securities~~ equity and the discretion of the ~~Company has~~ court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;proceeding therefor may be brought. (~~vii~~vi) ~~the~~ The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, ~~and~~ and, when ~~the Exchange Notes and the Private Exchange Notes are~~ duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ rights generally ~~from time to time in effect)~~and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (~~viii~~vii) ~~the~~ The Company has all requisite corporate company power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by the Company and (assuming due authorization, execution and delivery thereof by the ~~Initial Purchasers), will be a legal,~~ other parties thereto) constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that (~~subject, as~~ A) the enforcement thereof may be subject to ~~enforcement of remedies, to applicable~~ (i) bankruptcy, insolvency, fraudulent conveyance, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ rights generally ~~from time to time in effect~~ and ~~except that~~ (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (viii) The Company has all requisite corporate company power and authority to execute, deliver and perform their obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company. This Agreement has been duly executed and delivered by the Company. (ix) The statements under the ~~execution~~ captions “Description of Material Indebtedness,” “Description of the Notes,” and ~~delivery by~~ “Exchange Offer; Registration Rights” in the ~~Company of~~Final Memorandum insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present in all material respects such legal matters, documents and proceedings, and the statements made in the Final Memorandum under the heading “Certain U.S. Federal Income Tax Considerations,” insofar as such statements summarize certain federal income tax laws of the United States, constitute a fair summary of the principal U.S. federal income tax consequences of an investment in the Securities. (x) To the knowledge of such counsel, except as described in the Final Memorandum, no legal or governmental proceedings are pending or threatened that seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities hereunder or the consummation of the other transactions described in the Final Memorandum under the caption “Use of Proceeds.” (xi) The execution, delivery and performance by the Company of ~~its obligations under,~~ this Agreement, the Indenture, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the ~~other~~ transactions ~~herein~~ contemplated ~~do not~~ hereby and thereby (~~x) require~~ including, without limitation, the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer issuance and sale of the ~~Notes by~~ Securities to the Initial ~~Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y~~Purchaser) will not conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) after giving effect to the effectiveness of the Amendment annexed to such opinion and the application of the proceeds from the issuance and sale of the Securities as described in the Final Memorandum, the terms ~~and~~ or provisions ofof any Contract listed on a schedule reasonably acceptable to the Initial Purchaser, except for any such conflict, breach, violation, default or ~~constitute~~ event that would not, individually or in the aggregate, have a ~~default under~~Material Adverse Effect, ~~any indenture~~(ii) the certificate of incorporation or bylaws, ~~mortgage~~certificate of formation or operating agreement, ~~deed of trust~~as applicable, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of ~~its significant subsidiaries~~the Delaware Subsidiaries, or (iii) (assuming compliance with all applicable state securities or “Blue Sky” laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof) any ~~statute or any~~ statute, judgment, decree, order, rule or regulation known to and believed by such counsel to be normally applicable to transactions of the type contemplated by this Agreement, the Indenture and the Registration Rights Agreement, except for any such conflict, breach, default or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (xii) No consent, approval, authorization or order of any ~~court or other~~ governmental authority is required for the issuance and sale by the Company of the Securities to the Initial Purchaser or ~~any arbitrator known~~ the consummation by the Company of the other transactions contemplated hereby, except such as may be required under Blue Sky or state securities laws, as to which such counsel need express no opinion, and ~~applicable to the Company or its significant subsidiaries;~~those which have previously been obtained. (xxiii) ~~the Company is not an “investment company” and, after~~ After giving effect to the ~~Offering~~ sale of the ~~Notes~~ Securities to be sold hereunder and the application of the proceeds ~~therefrom~~from such sale (as described in the Final Memorandum under the caption “Use of Proceeds”), ~~will not be~~ none of the Company or the Delaware Subsidiaries is an “investment company”, ” as such term is defined in the ~~1940 Act; and (xi) such counsel does not know~~ Investment Company Act of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes1940, ~~regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum~~as amended. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiiixiv) No registration under the Act of the ~~Notes~~ Securities is required in connection with the sale of the ~~Notes~~ Securities to the Initial ~~Purchasers~~ Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the ~~Notes~~ Securities by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such ~~Notes~~ Securities in the initial resale thereof are qualified institutional buyers (“QIBs”) as defined in Rule 144A promulgated under the Act ~~(“QIBs”)~~ or (B) that the offer or sale of the ~~Notes~~ Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial ~~Purchasers’~~ Purchaser’s representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such ~~Notes~~ Securities to the Initial ~~Purchasers~~ Purchaser and the initial resale thereof and (iii) the due performance by the Initial ~~Purchasers~~ Purchaser of the agreements set forth in Section 8 hereof~~. In rendering any such opinion, such counsel may rely, as to matters of fact, to~~ . (xv) Neither the ~~extent such counsel deems proper, on certificates of responsible officers~~ consummation of the ~~Company and public officials and~~transactions contemplated by this Agreement nor the sale, ~~as to matters involving the application of laws of any jurisdiction other than the State of New York~~ issuance, execution or ~~the United States or the General Corporation Law~~ delivery of the ~~State~~ Securities will violate Regulation T, U or X of ~~Delaware, to~~ the ~~extent satisfactory in form and scope to counsel for~~ Board of Governors of the ~~Initial Purchasers, upon the~~ Federal Reserve System. The opinion of ▇▇▇▇▇▇▇ ~~LLP~~▇▇▇▇ & ▇▇▇▇▇ LLP may be subject to customary exceptions, assumptions and qualifications reasonably acceptable to the Initial Purchaser. An At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP shall additionally state that it has participated in conferences with officers and other representatives of the Parent and the Company, representatives of the independent public accountants for the Parent and the Company, representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection 7(a)(x)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Company’s books and records included in the Final Memorandum). The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP described in this Section shall be ~~delivered~~ rendered to the Initial ~~Purchasers~~ Purchaser at the request of the Company and ~~counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers~~shall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) ~~The~~ On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ the opinion, in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial ~~Purchasers, dated the Closing Date~~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, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial ~~Purchasers~~ Purchaser shall have received from ~~PricewaterhouseCoopers LLP~~ each of the Independent Accountants a comfort letter or letters ~~dated, respectively,~~ dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial ~~Purchasers~~Purchaser. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company contained in this Agreement ~~are~~ shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company ~~has~~ shall have performed all covenants and agreements and satisfied all conditions on ~~its~~ their part to be performed or satisfied hereunder at or prior to the Closing Date; and ~~(ii) subsequent to the respective dates~~ , except as ~~of which information is given~~ described in the Final Memorandum (exclusive of any amendment or supplement ~~thereto~~thereto after the date hereof), ~~neither~~ subsequent to the ~~Company nor any~~ date of ~~its subsidiaries has sustained any material loss~~ the most recent financial statements in such Final Memorandum, there shall have been no event or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceedingdevelopment, and ~~there has not been any materially adverse change (including~~no information shall have become known, ~~without limitation~~that, ~~a change in management~~ individually or ~~control), or development involving a prospective materially adverse change,~~ in the ~~condition~~ aggregate, has or would be reasonably likely to have a Material Adverse Effect. (~~financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ e) The sale of the ~~Company~~ Securities hereunder shall not be enjoined (temporarily or ~~any~~ permanently) on the Closing Date. (f) Subsequent to the date of ~~its subsidiaries, taken as a whole, except~~ the most recent financial statements in ~~each case as described in or contemplated by~~ the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.an

Appears in 1 contract

Sources: Purchase Agreement (Advanced Accessory Holdings Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers to purchase ~~and pay for~~ the Senior Notes ~~shall, be subject, in the Initial Purchasers’ sole discretion,~~ under this Agreement are subject to the ~~accuracy~~ satisfaction of each of the following conditions: (a) All the representations and warranties of the Company and Holdings contained ~~herein as of~~ in this Agreement shall be true and correct on the date hereof and ~~as of each~~ on the Closing Date, with the same force and effect as if made on and as of ~~each~~ the date hereof and the Closing Date, respectively. The Company and Holdings shall have performed or complied with all of the agreements and satisfied all conditions to be performed, complied with or satisfied by it on or prior to the ~~accuracy~~ 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 March 28, 1997, or at such later date and time as the Initial Purchasers may approve in writing; (2) no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the ~~statements~~ Closing Date, prevent the issuance of the Senior 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 the Company~~’s officers made~~ , threatened against, the Company which would prevent the issuance of the Senior Notes; and (4) 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 the Senior Notes for sale in any jurisdiction designated by the Initial Purchasers pursuant to ~~the provisions hereof~~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 ~~performance by~~ knowledge of the Company, be contemplated. (1) Since the date of the latest balance sheet included in the Offering Documents, there shall not have been any event that had a Material Adverse Effect, or any development involving a prospective change that could have a Material Adverse Effect, whether or not arising in the ordinary course of business; (2) since the date of the latest balance sheet included in the Offering Documents, there has not been any change, or any development involving a prospective change, in the capital stock or in the long-term debt of the Company ~~of its covenants and agreements hereunder and to~~ or Holdings from that set forth in the ~~following additional conditions:~~Offering Documents; (a3) On the Company and Holdings shall have no material liability or obligation, direct or contingent, other than those reflected in the Offering Memorandum; (4) on the Closing Date, the Initial Purchasers shall have received certificates dated the Closing Date, signed on behalf of the Company by a ~~legal~~ Vice President of the Company, confirming all matters set forth in Sections 9(a) and (b) hereof with respect to the Company. (5) on the Closing Date, the Initial Purchasers shall have received certificates dated the Closing Date, signed on behalf of Holdings by a Vice President of Holdings, confirming all matters set forth in Sections 9(a) and (b) hereof with respect to Holdings; (d) The Initial Purchasers shall have received on the Closing Date an opinion ~~from~~ (satisfactory to the Initial Purchasers and counsel to the Initial Purchasers) dated the Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ~~Chance US LLP~~& ▇▇▇▇▇▇▇, counsel for the ~~Company~~Company and Holdings, ~~dated the Closing Date~~with customary exceptions and assumptions, to the effect that: (i1) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and ~~each of its “significant subsidiaries”~~ Holdings (~~as defined in Rule 1.02(w~~A) ~~of Regulation S-X under the Exchange Act) have been~~ is a corporation duly ~~organized and are~~ organized, validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation~~ incorporation, (B) has all requisite corporate power and ~~are~~ authority to carry on its business as it is currently being conducted and to own, lease and operate its properties, and (C) to the best of such counsel's knowledge, is duly qualified ~~to transact business as foreign corporations~~ and ~~are~~ is in good standing ~~under~~ as a foreign corporation registered to do business in each jurisdiction in which the ~~laws~~ nature of ~~all other jurisdictions~~ its business or its ownership or leasing of property requires such qualification, except where ~~such counsel has been advised that~~ the failure to be so qualified would ~~amount to~~ not have a ~~material liability or disability to~~ Material Adverse Effect; (2) All of the outstanding capital stock of the Company has been duly authorized and ~~its subsidiaries~~validly issued and is fully paid and nonassessable, ~~taken as a whole;~~ is not subject to preemptive or similar rights by virtue of the Company's certificate of incorporation, bylaws or any agreement known to us to which the Company is a party and ~~each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses~~ except as described in the ~~Final~~ Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company is free and clear of any ~~perfected~~ security ~~interests or~~interest, claim, lien or encumbrance; (3) Except as disclosed in the Offering Memorandum, there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock in the Company or Holdings granted by the Company or Holdings, respectively; (4) The Company has all necessary corporate power and authority to enter into and perform its obligations under the Operative Documents and to issue, sell and deliver the Senior Notes to the Initial Purchasers to be sold by the Initial Purchasers pursuant hereto; (5) Holdings has all necessary corporate power and authority to enter into and perform its obligations under the Operative Documents and to issue and deliver the Guarantees to the Initial Purchasers; (6) The Company is not in violation of its charter or bylaws, and, to the best knowledge of such counsel, the Company is not in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note or any other ~~security interests~~evidence of indebtedness or in any other agreement, ~~liens~~indenture or instrument material to the conduct of the business of the Company, ~~encumbrances, equities~~ to which the Company is a party or ~~claims, except for pledges of subsidiary stock under debt instruments~~by which it or its property is bound; (7) Holdings is not in violation of its charter or bylaws, and, to the best knowledge of such counsel, Holdings is not in default in the performance of any obligation, agreement or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any other agreement, indenture or instrument material to the conduct of the business of Holdings, to which Holdings is a party or by which it or its property is bound; (8) None of (i) the execution, delivery or performance by the Company and Holdings of this Agreement and the other Operative Documents, (ii) the issuance and sale of the Notes by the Company and the issuance of the Guarantees by Holdings and (iii) the ~~statements set forth~~ consummation by the Company of the transactions described in the Offering Memorandum under the ~~heading “Description~~ caption "Use of ~~Notes”~~ Proceeds," will conflict with or constitute a breach of any of the terms or provisions of, or a default under, or result in the ~~Final Memorandum, insofar as such statements purport to summarize certain provisions~~ imposition of a lien or encumbrance on any properties of the ~~Notes and~~ Company or Holdings, as the ~~Indenture~~case may be, ~~provide~~ or an acceleration of indebtedness pursuant to, (1) the charter or bylaws of the Company or Holdings, as the case may be, (2) any bond, debenture, note, indenture, mortgage, deed of trust or other agreement or instrument known to such counsel to which the Company or Holdings, as the case may be, is a ~~fair summary~~ party or by which the Company or Holdings, as the case may be, or their respective properties are bound, or (3) to the best of such ~~provisions;~~ counsel's knowledge, any law or administrative regulation applicable to the Company or Holdings, as the case may be, or their respective assets or properties, or any judgment, order or decree of any court or governmental agency or authority entered in any proceeding to which the Company or Holdings, as the case may be, was or is now a party or to which the Company or Holdings, as the case may be, or their respective properties may be subject and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect which is known to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereundercounsel; (iv9) 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 ~~execution~~ various states may require) which has not been made or obtained is required for the execution, delivery and ~~delivery~~ performance of ~~this~~ the Operative Documents and the valid issuance and sale of the Securities; (10) To the best of such counsel's knowledge, no consents or waivers from any person are required to consummate the transactions contemplated by the Operative Documents, the Preliminary Offering Memorandum or the Offering Memorandum, other than such consents and waivers as have been or will be obtained prior to the Closing Date or, in the case of the Registration Rights Agreement ~~have~~ and the transactions contemplated thereby, will be obtained and made under the Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and state securities or Blue Sky laws and regulations. (11) This Agreement has been duly authorized and validly executed by ~~all necessary corporate action~~ each of the Company and Holdings and (assuming the ~~Agreement~~ due execution and delivery thereof by the Initial Purchasers) is a legally valid and binding obligation of the Company and Holdings, enforceable against each of them in accordance with its terms, except as the enforceability thereof may be (i) subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors rights generally, (ii) limited by general principles of equity (whether considered in a proceeding at law or in equity) and (iii) limited by securities laws prohibiting or limiting the availability of, and public policy against, indemnification or contribution. (12) Each of the Company and Holdings has ~~been~~ duly authorized the Indenture and when each of the Company and Holdings has duly executed and delivered ~~by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company~~ it (assuming ~~the~~ due authorization, execution and delivery thereof by the Trustee), the Indenture will be a ~~legal,~~ legally valid and binding ~~agreement~~ obligation of each of the Company and Holdings, 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). (13) The Company has duly authorized the Senior 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 Senior Notes will conform to the description thereof in the Offering Memorandum, and will be the legally valid and binding obligations of the Company, enforceable against the Company in accordance with ~~its terms~~ their terms, except as the enforceability thereof may be (~~subject, as to enforcement of remedies,~~ i) subject to applicable bankruptcy, ~~reorganization,~~ insolvency, ~~moratorium~~ moratorium, reorganization or ~~other~~ similar laws ~~affecting creditors’~~ in effect which affect the enforcement of creditors rights generally ~~from time to time~~ and (ii) limited by general principles of equity (whether considered in ~~effect~~a proceeding at law or in equity)~~. The Indenture meets the requirements for qualification under the TIA~~. (vi14) ~~the Notes have been~~ Holdings has duly authorized ~~by all necessary corporate action of~~ the ~~Company~~ Guarantees and, on when issued and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company authenticated in accordance with the terms of the ~~Registration Rights Agreement~~ Indenture and delivered to the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee Initial Purchasers in accordance with the ~~Indenture)~~terms hereof, the Guarantees will conform to the description thereof in the Offering Memorandum, and will be the ~~legal,~~ legally valid and binding obligations of ~~the Company~~Holdings, enforceable against Holdings in accordance with their ~~terms~~ terms, except as the enforceability thereof may be (~~subject, as to enforcement of remedies,~~ i) subject to applicable bankruptcy, ~~reorganization,~~ insolvency, ~~moratorium~~ moratorium, reorganization or ~~other~~ similar laws ~~affecting creditors’~~ in effect which affect the enforcement of creditors rights generally ~~from time to time~~ and (ii) limited by general principles of equity (whether considered in ~~effect~~a proceeding at law or in equity). (~~viii~~15) ~~the~~ The Company has ~~all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been~~ duly authorized by the ~~Company~~ New Senior Notes and, when ~~duly executed~~ issued and ~~delivered by~~ authenticated in accordance with the ~~Company (assuming due authorization~~terms of the Registered Exchange Offer and the Indenture, ~~execution~~ the New Senior Notes will conform to the description thereof in the Offering Memorandum, and ~~delivery thereof by the Initial Purchasers),~~ will be ~~a legal,~~ the legally valid and binding ~~agreement~~ obligations of the Company, enforceable against the Company in accordance with ~~its terms~~ their terms, except as the enforceability thereof may be (~~subject, as to enforcement of remedies,~~ i) subject to applicable bankruptcy, ~~reorganization,~~ insolvency, ~~moratorium~~ moratorium, reorganization or ~~other~~ similar laws ~~affecting creditors’~~ in effect which affect the enforcement of creditors rights generally ~~from time to time in effect~~ and ~~except that any rights to indemnity or contribution thereunder may be~~ (ii) limited by ~~federal and state securities laws and public policy considerations~~general principles of equity (whether considered in a proceeding at law or in equity). (ix16) The Registration Rights Agreement has been duly authorized and validly executed by each of the Company and Holdings and (assuming the due execution and delivery thereof by the Initial Purchasers) is a legally valid and binding obligation of each of the Company and Holdings, enforceable against if 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. (17) To the ~~performance by the Company~~ best knowledge of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, ~~to which the Company~~ there is (i) no action, suit or ~~any of its significant subsidiaries is a party~~ proceeding before or by ~~which the Company or~~ any ~~of its significant subsidiaries or any of their respective properties are bound~~court, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental ~~proceedings~~ agency, body or official, domestic or foreign, now pending or threatened to which the Company or ~~any of its subsidiaries~~ Holdings is or may be a party or to which the business or property of the Company or Holdings is or may be subject, (ii) no statute, rule, regulation or order that has been enacted, adopted or issued by any governmental agency, 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 Holdings or any of its subsidiaries has been issued that, in the case of clauses (i), (ii) and (iii) above, (a) is ~~subject~~ required to be disclosed in the Offering Memorandum and that is not so disclosed, (b) would be interfere with or adversely affect the issuance of the Senior Notes or the Guarantees, or (c) might invalidate any provision or the validity of the Operative Documents, the Senior Notes or the Guarantees; (18) To the best knowledge of such counsel, there is no contract or document concerning the Company of a character required to be described in ~~a prospectus pursuant to~~ the ~~Act~~ Offering Memorandum that ~~are~~ is not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum.so described; (~~xii~~19) ~~commencing with~~ To the ~~Company’s taxable year ended December 31~~best knowledge of such counsel, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method no holder of ~~operation, as represented by~~ any security of the Company, ~~will permit~~ except as disclosed in the Offering Memorandum, has any right to require registration of any of the Company's securities by virtue of the execution of the Operative Documents, the issuance and sale of the Senior Notes by the Company or the transactions contemplated hereby and thereby, other than such rights as will be waived prior to ~~continue to so qualify.~~the Closing Date; (~~xiii~~20) ~~No registration~~ The statements under the captions "Description of the Notes" and "Business--Legal Proceedings" in the Offering Memorandum, insofar as such statements constitute a summary of legal matters, documents or proceedings referred to therein, are correct in all material respects; (21) Neither the Company nor any subsidiary of the Company is an "investment company" within the meaning of the Investment Company Act of 1940, as amended; (22) When the Senior Notes ~~is required~~ are issued and delivered pursuant to this Agreement, such Senior Notes will not be of the same class (within the meaning of Rule 144A under the Act) as securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in ~~connection with~~ a United States automated inter-dealer quotation system; (23) The Company (or any agent thereof acting on the behalf of the Company) has not taken, and will not take, any action that might cause this Agreement or the issuance or sale of the Notes to ~~the Initial Purchasers as contemplated by this Agreement and the Final Memorandum~~ violate Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or ~~in connection with the initial resale~~ Regulation X (12 C.F.R. Part 224) of the ~~Notes by the Initial Purchasers in accordance with Section 8~~ Board of ~~this Agreement, and prior to the commencement~~ Governors of the ~~Exchange Offer~~ Federal Reserve System, in each case as in effect now or as the same may hereafter be in effect on the Closing Date; (~~as defined in the Registration Rights Agreement~~24) ~~or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the~~ The Indenture is not required to be qualified under the ~~TIA, in each case assuming~~ Trust Indenture Act prior to the first to occur of (i) ~~(A) that~~ the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, Registered Exchange Offer and (ii) the ~~accuracy~~ effectiveness of the ~~Initial Purchasers’ representations in Section 8 and those~~ Shelf Registration Statement; (25) No registration under the Act of the ~~Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such~~ Senior Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.required for

Appears in 1 contract

Sources: Purchase Agreement (Anchor Holdings Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes shall,~~ Securities to be ~~subject~~purchased by it on the Closing Date hereunder are subject to the fulfillment, in ~~the~~ such Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following ~~additional~~ conditions: (a) templated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for those purposes shall have been commenced or shall be pending or, to the knowledge of the Issuers, threatened. No order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Issuers, threatened. (b) On the Closing Date, the Issuers shall have delivered to the Initial Purchasers ~~shall have received~~ a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~true, ~~counsel for~~ correct and complete copy of the ~~Company, dated~~ New Revolving Credit Facility; on and as of the Closing ~~Date,~~ Date (after giving effect to the ~~effect that:~~consummation of the transactions contemplated by this Agreement), there shall not exist any condition which would constitute a Default or an Event of Default (as defined in the New Revolving Credit Facility). (c) Subsequent to the date hereof, (i) ~~such counsel has no reason to believe that~~ except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (~~other than~~ financial or other), business, prospects, properties, assets, net worth or results of operations of the ~~financial statements~~ Company and ~~other financial information contained therein~~the Subsidiaries, taken as ~~to which such counsel need express no opinion~~a whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) the ~~Final Memorandum, as of its date or the date of such opinion, included or includes~~ Offering Memorandum shall not contain any untrue statement of a material fact or ~~omitted or omits~~ omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~. (ii)~~ , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to ~~transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where~~ correct any such ~~counsel has been advised that the failure to be so qualified would amount to a material liability~~ misstatement or ~~disability to the Company and its subsidiaries~~omission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers~~’ representations in Section 8 and those~~ , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateSecurities. (bd) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from ▇▇▇▇▇▇ ▇▇~~of Kirk▇▇▇▇ & ▇lli▇, ▇▇~~▇▇▇▇ LLP~~unsel for the Company, ~~counsel for~~ dated the Closing Date and addressed to the Initial Purchasers, ~~dated~~ substantially in the ~~Closing Date, with respect~~ form of Exhibit B hereto. (e) spect to ~~certain legal matters relating to this Agreement and~~ such ~~other related~~ matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersrequest. (cf) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP a letter or~~ "cold comfort" letters ~~dated~~addressed to the Initial Purchasers, ~~respectively,~~ and dated the date hereof and the Closing Date, from Ernst & Young LLP, substantially in ~~form and substance satisfactory to counsel for~~ the forms heretofore approved by the Initial Purchasers. (di) There shall not have been any change in the capital stock of the Company or any Subsidiary nor any material increase in the short-term or long-term debt of the Company or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole; (iii) all the representations and warranties of the Issuers contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; and (iv) the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of each of the Issuers (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(g) and in Section 7(h) hereof. (h) The Issuers shall not have failed at or prior to the Closing Date to have performed or complied with any of their respective agreements herein contained and required to be performed or complied with by them hereunder at or prior to the Closing Date. (i) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any class of securities of the Issuers (including the Securities), or (ii) it is reviewing its ratings assigned to any class of securities of the Issuers (including the Securities) with a view to possible downgrading, with negative implications or direction not determined. (k) The Issuers shall have taken all necessary acts to (i) repay all of the indebtedness for money borrowed of the Company and the Subsidiaries indicated as being repaid in the Offering Memorandum under the caption "Unaudited Pro Forma Consolidated Financial Information" immediately prior to the issuance of the Securities and (ii) terminate the related credit agreements. (l) The Company shall have received a solvency opinion from Valuation Research, which solvency opinion shall be in form and substance reasonably satisfactory to the Initial Purchasers. (m) Roma Restaurant Holdings, Inc. ("Holdings") shall have received at least $27.0 million of cash equity proceeds pursuant to the Recapitalization Agreement (as defined in the Offering Memorandum). (n) Except as disclosed in the Offering Memorandum, Holdings shall have contributed all of its assets and properties to the Company. (o) The Issuers shall have furnished or caused to be furnished to the Initial Purchasers ~~at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ such further certificates and ~~its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct~~ customary closing documents as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably ~~requested from the Company~~requested. All such opinions, certificates, letters and other documents ~~delivered pursuant to this Agreement~~ will ~~comply~~ be in compliance with the provisions hereof only if they are reasonably satisfactory in ~~all material respects~~ form and substance to the Initial ~~Purchasers~~ Purchasers. Any certificate or document signed by any officer of an Issuer and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers~~. The Company~~ , shall ~~furnish~~ be deemed a representation and warranty by the Issuers to the Initial Purchasers ~~such conformed copies of such opinions, certificates, letters, and documents in such quantities~~ as to the ~~Initial Purchasers shall reasonably request~~statements made therein.

Appears in 1 contract

Sources: Purchase Agreement (Roma Fort Worth Inc)

Appears in 1 contract

Sources: Purchase Agreement (Costilla Energy Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase ~~and pay for~~ the ~~Notes shall, be subject~~Securities on the Closing Date hereunder is subject to the fulfillment, in the Initial Purchasers’ ' sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Issuers, be contemplated. No order suspending the sale of the Securities in any jurisdiction designated by the Initial Purchasers shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel~~ been issued and no proceedings for ~~the Company, dated the Closing Date~~that purpose shall have been commenced or shall be pending or, to the ~~effect that:~~knowledge of the Issuers, shall be contemplated. (ib) ~~such counsel has no reason~~ Subsequent to ~~believe that~~ the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the condition (~~other than~~ financial or other), business, prospects, properties, net worth, or results of operations of the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date~~ Company or the ~~date~~ Subsidiaries, which in the opinion of ~~such opinion~~the Initial Purchasers, ~~included~~ would materially adversely affect the market for the Securities. (c) The Initial Purchasers shall not have been advised by the Issuers or ~~includes any~~ shall not have concluded and disclosed to the Company that the Offering Memorandum contains an untrue statement of a fact which in the opinion of the Initial Purchasers or their counsel is material ~~fact or omitted~~ or omits to state ~~any~~ a fact which in the opinion of the Initial Purchasers or their counsel, is material ~~fact~~ and is required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iid) The Initial Purchasers shall have received on the Closing Date an opinion of Mayor, Day, Cald▇▇▇▇ & ▇eet▇▇, ▇.L.P., counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, to the effect that: (i) the Company is a corporation duly incorporated and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are~~ validly existing ~~as corporations~~ in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have Delaware with full corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the ~~Final~~ Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (KCS Energy Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Paul, Hastings, Janofsky & Walker LLP, counsel for the Company, in form and substance ▇▇▇▇▇▇▇~~▇ Chance US LLP,~~ ▇ly ▇▇▇▇▇▇actory to counsel for the ~~Company, dated the Closing Date~~Initial Purchasers, to the effect that: (i) ~~such counsel has no reason to believe that (other than the financial statements and other financial information contained therein~~The Company is duly incorporated, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation~~ incorporation, and ~~are duly qualified~~ has all requisite corporate power and authority to ~~transact~~ own its properties and to conduct its business as ~~foreign corporations~~ described in the Offering Memorandum. Each of the Subsidiaries listed on Schedule 3 hereto (such subsidiaries, the "Significant Subsidiaries") is validly existing and ~~are~~ in good standing under the laws of its respective jurisdiction of incorporation, formation or organization, as the case may be, and has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite power and authority (corporate and other) to ~~own, lease and operate their respective~~ own its properties and ~~assets~~ conduct its business as now conducted and ~~conduct their respective businesses~~ as described in the ~~Final~~ Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;. (~~iii~~ii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action Each of the Company and the ~~Agreement~~ Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction listed on a schedule to such opinion. (iii) The Company and each Significant Subsidiary, as applicable, has all requisite corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the Private Exchange Notes; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly ~~executed~~ and ~~delivered by the Company; (v) the execution and delivery of the Indenture have been duly~~ validly authorized by the Company and each Significant Subsidiary and, when duly executed and delivered by each of the ~~Company~~ Issuers (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the ~~Indenture will be a legal,~~ valid and binding agreement of each of the Company and each Significant Subsidiary, enforceable against the Company and each of the Significant Subsidiaries in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance and transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforce- ment of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance. (iv) The Notes are substantially in the form attached to the Indenture. The Notes have each been duly and validly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with ~~its terms~~ their terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance and transfer, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to ~~time in effect). The Indenture meets~~ limit the ~~requirements for qualification under the TIA~~availability of equitable remedies such as specific performance. (viv) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance and transfer, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to ~~time in effect)~~limit the availability of equitable remedies such as specific performance. (~~viii~~vi) The Guarantees are substantially in the form attached to the Indenture. The Guarantees and the guarantees of the Exchange Notes and the Private Exchange Notes have been duly and validly authorized by each Significant Subsidiary and, when executed by each of the Subsidiary Guarantors and when the Notes are duly executed and delivered against payment therefor and are authenticated by the Trustee in accordance with the provisions of the Indenture, such Guarantees and such guarantees of the Exchange Notes will have been duly executed, issued and delivered and will constitute valid and legally binding obligations of each Significant Subsidiary, entitled to the benefits of the Indenture and enforceable against the Subsidiary Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance and transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance. (vii) Each of the Company and the Significant Subsidiaries has all requisite ~~corporate~~ corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the Company and, when duly executed and delivered by each of the ~~Company~~ Issuers (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will ~~be a legal,~~ constitute the valid and legally binding agreement of each of the ~~Company~~Company and each Significant Subsidiary, enforceable against the Company and each Significant Subsidiary in accordance with its ~~terms~~ terms, except that (~~subject~~A) the enforcement thereof may be subject to (i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance and transfer, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect~~ and ~~except that~~ (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy ~~considerations)~~considerations including, without limitation, standards of materiality, good faith and reasonableness in the interpretation and enforcement of contracts, and the application of such principles to limit the availability of equitable remedies such as specific performance. (viii) Each of the Company and the Significant Subsidiaries has all requisite corporate, partnership, limited liability company or other organizational power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company and each of the Significant Subsidiaries of the transactions contemplated hereby have been duly and validly authorized by the Company and each of the Significant Subsidiaries. This Agreement has been duly executed and delivered by the Company and each of the Significant Subsidiaries. (ix) The Indenture, the ~~execution and delivery by~~ Notes, the ~~Company of,~~ Guarantees and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Offering Memorandum. (x) The execution, delivery and performance ~~by the Company~~ of ~~its obligations under,~~ this Agreement, the Indenture, the Registration Rights ~~Agreement~~Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the ~~Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering~~ issuance and sale of the Notes to the Initial ~~Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do~~ Purchasers) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms ~~and~~ or provisions ofof any Material Contract, except for any such conflict, breach, violation, default or ~~constitute~~ event that would not, individually or in the aggregate, have a ~~default under~~Material Adverse Effect, ~~any indenture, mortgage, deed~~ (ii) the certificate of ~~trust, lease~~ incorporation or ~~other material agreement~~ bylaws (or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws similar organizational document) of the Company or any of ~~its significant subsidiaries~~the Significant Subsidiaries, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any ~~statute~~ U.S. federal, New York or ~~any~~ California State or Delaware General Corporation Law statute, judgment, decree, order, rule or regulation ~~of any court or other governmental authority or any arbitrator~~ known to such counsel ~~and~~ to be applicable to the Company or ~~its significant subsidiaries;~~any of the Significant Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect. For purposes hereof, a "Material Contract" means the agreements and instruments listed on a schedule to such opinion. (xxi) No consent, approval, authorization or order of any U.S. federal or New York or California State governmental authority is required for the issuance and sale by the Company ~~is not an “investment company” and, after giving effect to the Offering~~ of the Notes to the Initial Purchasers or the consummation by the Company of the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained. (xii) None of the Company or any Significant Subsidiary is, and immediately following the consummation of the transactions contemplated by this Agreement and the application of the net proceeds ~~therefrom~~from the sale of the Notes pursuant to this Agreement (as described in the Offering Memorandum under the caption "Use of Proceeds") will be, ~~will not be~~ an “"investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be " required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) registered under the ~~Code, and the Company’s present and proposed method~~ Investment Company Act of ~~operation~~1940, as ~~represented by the Company, will permit the Company to continue to so qualify~~amended. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the ~~Final~~ Offering Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs”") or (B) that the offer or ---- sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ ' representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. ~~In rendering any such opinion~~At the time the foregoing opinion is delivered, ~~such counsel may rely~~Paul, ~~as to matters of fact~~Hastings, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Janofsky & Walker LLP shall additionally state that it ▇▇▇ p▇▇▇▇▇▇~~▇ LLP. An opinion of~~ ▇▇te▇ ▇▇ ▇▇▇fer▇▇▇▇▇ ~~LLP shall be delivered to~~ with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchasers and counsel for the Initial ~~Purchasers covering~~ Purchasers, at which conferences the contents of the Offering Memorandum and related matters ~~reasonably requested by~~ were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the ~~Initial Purchasers~~accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except to the extent specified in subsection 7(a)(ix)), on the basis of the foregoing (relying as to materiality to a certain extent upon the opinions of officers and other representatives of the Company and its Subsidiaries) no facts have come to its attention which lead it to believe that the Offering Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need make no statement with respect to the financial statements and related notes thereto and the other financial and accounting data derived from the Company's books and records included in the Offering Memorandum). The opinion of Paul, Hastings, Janofsky & Walker LLP described in this Section shall be rendered to t▇▇ ▇▇▇▇▇al ▇▇▇▇▇▇sers at the request of the Company and shall so state therein. References to the ~~Final~~ Offering Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) ~~The~~ On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon & Reindel llp, counsel for the Initial Purchasers, with ▇▇▇▇▇▇▇ ▇▇ ▇▇rta▇▇ ▇▇▇▇~~▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal~~ l matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ~~▇▇▇▇▇▇ ▇▇▇▇▇▇~~ Cahill Gordon & ~~▇▇▇▇▇▇▇ LLP~~ Reindel llp shall have received and may rely upon such ~~certificates and other~~ ▇▇▇▇▇▇▇▇▇▇▇▇ an▇ ▇▇▇▇▇ documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Independent Accountants a comfort letter or letters ~~dated, respectively,~~ dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the ~~Company~~ Issuers contained in this Agreement ~~are~~ shall be true and correct ~~as if made~~ or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on ~~and as~~ the date of this Agreement and, in each case after giving effect to the transactions contemplated hereby, on the Closing Date, except that if a representation and warranty is made as of a specific date, and such date is expressly referred to therein, such representation and warranty shall be true and correct (or true and correct in all material respects, as applicable) as of such date; ~~and~~ the ~~Company has~~ Issuers shall have performed or complied with all covenants and agreements and satisfied all conditions on ~~its~~ their part to be performed or satisfied hereunder at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (Dole Food Company Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Business Loans and related Loan Files shall have been delivered to the Indenture Trustee pursuant to the Transfer and Servicing Agreement. (b) The Initial Purchasers shall have received a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company~~certificate, dated the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Executive or Senior Vice President of the Company to the effect that such officer has carefully examined this Agreement, the Final Memorandum and the Transaction Documents and that: , to the best of such officer’s knowledge (i) since the date information is given in the Final Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Business Loans except as contemplated by the Final Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct as of the Closing Date, (iii) the Company has ~~no reason~~ complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion)~~ the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or ~~the date of such opinion, included or includes~~ any Additional Offering Document contains an untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Class A Notes shall have been ~~duly organized~~ rated no less than “Aaa” by ▇▇▇▇▇’▇, “AAA” by S&P, and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than “Aa2” by ▇▇▇▇▇’▇, “AA” by S&P, and “AA” by Fitch and the Class C Notes shall have been rated no less than “A1” by ▇▇▇▇▇’▇, “A” by S&P and “A+” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, ▇▇▇▇▇ & ▇▇▇▇▇ shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the ~~Company pursuant~~ date of delivery thereof, in form and substance satisfactory to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial ~~Purchasers~~ Purchasers, with respect to certain financial and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in shall have received an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, ~~such counsel may rely~~dated the Closing Date, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇ ▇~~▇▇ LLP~~. ~~An opinion of~~ ▇▇▇~~▇▇▇▇ LLP shall be delivered~~ , in–house counsel to the ~~Initial Purchasers and counsel for~~ Indenture Trustee, substantially in the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.form attached hereto as Exhibit A. (bf) ~~The~~ Initial Purchasers shall have received ~~a legal~~ an opinion ~~from ▇▇▇▇▇▇~~ of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Company, (i) with respect to certain corporate matters substantially in the form attached hereto as Exhibit B and (ii) with respect to there being no consents required to transfer the business Loans substantially in the form attached hereto as Exhibit C. (g) The Initial Purchasers shall have received opinions of Winston & ▇▇▇▇▇▇ LLP, counsel ~~for~~ to the ~~Initial Purchasers~~Company, ~~dated~~ the ~~Closing Date~~Trust Depositor and the Trust, (i) with respect to certain ~~legal matters relating~~ corporate, federal tax, securities law and investment company matters, substantially in the forms attached hereto as Exhibit D and (ii) with respect to ~~this Agreement~~ certain “true sale,” “non–consolidation” issues and ~~such other related matters~~ “perfection issues” substantially in the forms attached hereto as ~~the~~ Exhibit E. (h) The Initial Purchasers ~~may reasonably require. In rendering such opinion~~shall have received opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ~~▇▇▇▇▇▇~~ & ~~▇▇▇▇▇▇▇ LLP shall have received~~ Finger, counsel to the Owner Trustee and ~~may rely upon such certificates~~ the Trust, (i) substantially in the forms attached hereto as Exhibit F, (ii) with respect to certain “trust issues” substantially in the form attached hereto as Exhibit G and ~~other documents and information~~ (iii) with respect to certain “perfection issues” substantially in the forms attached hereto as ~~it may reasonably request to pass upon such matters.~~Exhibit H. (ci) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Indenture Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Indenture Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and their counsel ~~for~~ such further information, certificates and documents as the Initial ~~Purchasers. The Company~~ Purchasers and their counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall ~~furnish~~ be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers ~~such conformed copies of such opinions, certificates, letters,~~ and their counsel. (l) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in ~~such quantities as~~ form and substance to the Initial Purchasers and their counsel, and the Initial Purchasers and their counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Sources: Purchase Agreement (American Capital Strategies LTD)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the continuing accuracy of the representations and warranties of the Company ~~contained~~ herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, to as the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to~~ case may be; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and ~~agreements~~ obligations hereunder and to the following ~~additional~~ further conditions: (a) On The Company shall not have advised the ~~Closing Date~~Initial Purchasers that, and the Initial Purchasers shall not have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~otherwise become aware of the fact that, ~~counsel for~~ the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Offering Memorandum, ~~as of its date~~ or ~~the date of such opinion~~any supplement or amendment thereto, ~~included or includes any~~ contains an untrue statement of ~~a material~~ fact ~~or omitted~~ which is material, or omits to state ~~any~~ a fact which is material ~~fact~~ and is required to be stated therein or is necessary ~~in order~~ to make the ~~statements therein~~statements, in ~~the~~ light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No ~~registration under the Act of the Notes is required in connection with~~ order suspending the sale of the Notes to 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) At Closing Date, and the Option Closing Date, if any, the Initial Purchasers ~~as contemplated by this Agreement and~~ shall have received the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the favorable opinion of ▇▇▇▇▇▇~~▇ LLP. An opinion of~~ ▇▇, ▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~▇, A Professional Corporation, counsel ~~for~~ to the ~~Initial Purchasers~~Company, dated the Closing Date, ~~with respect~~ addressed to ~~certain legal matters relating to this Agreement and such other related matters as~~ the Initial Purchasers ~~may~~ and in form and substance reasonably ~~require. In rendering such opinion,~~ satisfactory to ▇▇▇▇▇▇ , ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, to the effect that: (i) The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease its properties and conduct its business as described in the Offering Memorandum and is duly qualified to transact business and is in good standing in the states of Massachusetts and Texas. (ii) The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Offering Memorandum as of the date referred to therein; the authorized shares of the Company's Common Stock have been duly authorized; the outstanding shares of the Company's Common Stock have been duly authorized and validly issued and are fully paid and non-assessable; all of the Common Stock and the Notes conform to the description thereof contained in the Offering Memorandum; the certificates for the Common Stock, are in due and proper form; the shares of Common Stock to be issued by the Company upon conversion of the Notes have been duly authorized and will be validly issued, fully paid and non-assessable when issued and paid for as contemplated by this Agreement; and no preemptive rights of stockholders exist with respect to any of the shares of Common Stock or the issue or sale thereof under the Company's charter or by-laws, or to the knowledge of such counsel, any other agreement binding upon the Company. (iii) Except as described in or contemplated by the Offering Memorandum, to the knowledge of such counsel, there are no outstanding securities of the Company convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of capital stock of the Company and there are no outstanding or authorized options, warrants or rights of any character obligating the Company to issue any shares of its capital stock or any securities convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of such stock. (iv) The statements under the captions "Management," "Description of Credit Facility," "Description of Notes," "Description of Capital Stock," "Description of 6% Convertible Notes due 2001" and "Certain Federal Income Tax Considerations" in the Offering Memorandum, insofar as such statements constitute a summary of documents referred to therein or matters of law, are, in all material respects, fair and accurate summaries of such documents and matters. (v) The execution and delivery of this Agreement, the Indenture, the Notes and the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby do not and will not (a) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the certificate of incorporation or bylaws of the Company, (b) or any agreement or instrument known to such counsel to which the Company is a party or by which the Company may be bound, or (c) violate or conflict with any applicable law, rule or regulation or any order, writ or decree of any court or governmental agency or body having jurisdiction over the Company or its properties. (vi) This Agreement, the Indenture and the Registration Rights Agreement have been duly authorized executed and delivered by the Company. (vii) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement, the Indenture, the Notes or the Registration Rights Agreement and the consummation of the transactions herein contemplated (other than as may be required by State securities and Blue Sky laws as to which such counsel need express no opinion) except such as have been obtained or made, specifying the same. (viii) The Company is not, and will not become, as a result of the consummation of the transactions contemplated by this Agreement, and application of the net proceeds therefrom as described in the Offering Memorandum, required to register as an investment company under the ▇▇▇▇ ~~LLP shall~~ ▇▇▇. (ix) The shares of Common Stock issuable upon conversion of the Notes (i) have ~~received~~ been duly authorized and validly reserved for issuance upon such conversion, and such shares, when issued and delivered upon such conversion in the manner provided for by the Notes and in the Indenture, will be validly issued, fully paid and non-assessable, and (ii) will conform to the description thereof contained on the Offering Memorandum. (x) The issuance of the Notes and the shares of Common Stock issuable upon conversion of the Notes are not subject to preemptive or other similar rights binding upon the Company contained in the Company's certificate of incorporation, by-laws or under applicable law. (xi) Assuming the accuracy of the Company's representations and warranties set forth in subparagraph (x) of Section 1, the accuracy of the Initial Purchasers' representations and warranties set forth in subparagraph (d) of Section 2, and compliance with the procedures set forth in Section 7 hereof, and in reliance upon the acknowledgments, representations and agreements made, or deemed to be made, by each purchaser of Notes as set forth in the Offering Memorandum, it is not necessary in connection with the offer, sale and delivery of the Notes to the Initial Purchasers or the initial offer, resale and delivery of the Notes by the Initial Purchasers, in each case, in the manner contemplated by this Agreement and the Offering Memorandum to register the Notes under the Securities Act or to qualify the Indenture under the 1939 Act it being understood that no opinion is expressed as to any subsequent resale of any such Note. (xii) The Notes, the Common Stock issuable upon the conversion of the Notes, the Registration Rights Agreement and the Indenture conform in all material respects to the description thereof contained in the Offering Memorandum, and the form of certificate used to evidence the Notes and the Underlying Stock are in due and proper form under applicable law. (xiii) The Notes are in the form contemplated by the Indenture, have been duly authorized by the Company and assuming that the Notes have been executed and authenticated by the Trustee in the manner described in its certificate delivered to you today (which fact such counsel need not determine by an inspection of the Notes), the Notes will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited to bankruptcy, insolvency (including without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at laws), and will be entitled to benefits of the Indenture. (xiv) Assuming the due authorization, execution and delivery thereof by the Initial Purchasers, the Registration Rights Agreement is a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (a) as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganizations, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at laws) and (b) rights to indemnity and contribution thereunder may be limited by federal or state securities laws or the policies underlying such laws. (xv) Assuming the due authorization, execution and delivery thereof by the Trustee, the Indenture is a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent that the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganizations, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at laws) and (b) rights to indemnity and contribution thereunder may be limited by federal or state securities laws or the policies underlying such laws. In rendering such opinion ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, A Professional Corporation, may rely as to matters governed by the laws of states other than Massachusetts and Delaware or Federal laws on local counsel licensed to practice in such jurisdictions, provided that in each case ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, A Professional Corporation, shall state that they believe that they and the Initial Purchasers are justified in relying on such other counsel. In rendering such opinion, such counsel may also rely, as to matters of fact, on certificates of officers of the Company and of governmental officials, in which case their opinion shall state that they are so doing. In addition to the matters set forth above, such opinion shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that the Offering Memorandum as of the Closing Date or the Option Closing Date, as the case may be, 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 view as to financial statements, schedules and statistical information therein). With respect to such statement, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, A Professional Corporation, may state that their belief is based upon ~~such certificates~~ the procedures set forth therein, but is without independent check and ~~other documents and information as it may reasonably request to pass upon such matters~~verification. (c) The Initial Purchasers shall ~~have received from PricewaterhouseCoopers LLP a letter~~ receive on the Closing Date or ~~letters dated, respectively,~~ the ~~date hereof and the~~ Option Closing Date, ~~in form and substance satisfactory to counsel for~~ as the ~~Initial Purchasers~~case may be, the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇, Esq. ~~(d) The Company shall have furnished~~ , General Counsel of the Company, dated the Closing Date or ~~caused to be furnished~~ the Option Closing Date, as the case may be, addressed 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~~ stating that it may be relied upon by counsel to the Initial ~~Purchasers~~ Purchasers) to the effect that: (i) Each of the ~~representations~~ Partnerships is a validly existing partnership under the laws of the jurisdiction of its organization, with the power and ~~warranties~~ authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum, and is duly qualified to conduct its business and is in good standing in each jurisdiction in which the nature of its properties or the conduct of its business requires such qualification, except where the failure so to qualify does not have a material adverse effect upon the business of the Company ~~in this Agreement are true and correct as if made on and as of the Closing Date;~~ and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, Subsidiaries taken as a whole~~, except in each case as described in or contemplated by~~ ; the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, partnership interests in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed Partnerships held directly or indirectly by the Company are held, to such counsel's knowledge, free and ~~such~~ clear of all liens, encumbrances and equities and claims, except (a) for those encumbrances disclosed in the Offering Memorandum, (b) to the extent provided in the applicable partnership agreement; each partnership agreement ~~shall be~~ pursuant to which the Company or a Subsidiary holds a partnership interest in a Partnership is in full force and effect ~~at all times from~~ and ~~after~~ constitutes the ~~Closing Date~~legal, valid and binding agreement of the parties thereto, enforceable against such parties in accordance with the terms thereof, except as enforcement thereof may be limited by equitable principles or by bankruptcy, insolvency or other similar laws affecting creditors' rights generally. To such counsel's knowledge, there has been no material breach of or default under, and no event which with notice or lapse of time would constitute a material breach of or default under, such agreements by the Company or any Subsidiary or any other party to such agreements. (hii) On Each of the LLCs is a validly existing limited liability company under the laws of the jurisdiction of its organization, with the power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum, and is duly qualified to conduct its business and is in good standing in each jurisdiction in which the nature of its properties or ~~before~~ the ~~Closing Date~~conduct of its business requires such qualification, except where the failure so to qualify does not have a material adverse effect upon the business of the Company and the Subsidiaries taken as a whole; the membership or other ownership interests in the LLCs held directly or indirectly by the Company are held, to such counsel's knowledge, free and clear of all liens, encumbrances and equities and claims, except (a) for those encumbrances disclosed in the Offering Memorandum and (b) to the extent provided in the applicable operating agreement; each operating agreement pursuant to which the Company or a Subsidiary holds a membership or other ownership interest in an LLC is in full force and effect and constitutes the legal, valid and binding agreement of the parties thereto, enforceable against such parties in accordance with the terms thereof, except as enforcement thereof may be limited by equitable principles or by bankruptcy, insolvency or other similar laws affecting creditors' rights generally. To such counsel's knowledge, there has been no material breach of or default under, and no event which with notice or lapse of time would constitute a material breach of or default under, such agreements by the Company or any Subsidiary or any other party to such agreements. (iii) Each of the Corporate Subsidiaries is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Offering Memorandum; each of the Subsidiaries is duly qualified to transact business and is in good standing in all jurisdictions in which the conduct of their business requires such qualification, except where the failure so to qualify does not have a material adverse effect upon the business of the Company and the Subsidiaries taken as a whole; and the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable and are owned by the Company or a Subsidiary; and, to the best of such counsel's knowledge, the ~~Initial Purchasers~~ outstanding shares of capital stock of each of the Subsidiaries is owned free and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.c

Appears in 1 contract

Sources: Purchase Agreement (Concentra Managed Care Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the ~~Notes shall, be subject~~Securities hereunder is subject to the fulfillment, in the Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued, and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No order suspending the sale of the Securities in any jurisdiction shall have been issued, and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated. (b) Subsequent to the date hereof and prior to the Closing Date, the conduct of the business and operations of the Company has not been interfered with by strike, fire, flood, hurricane, accident or other calamity (whether or not insured) and, except as otherwise stated in the Offering Memorandum, the properties of the Company have not sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which could not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect. (c) The Initial ~~Purchasers~~ Purchaser shall have received ~~a legal~~ on the Closing Date an opinion ~~from ▇▇~~of ▇▇▇▇▇▇ ~~Chance US LLP,~~ Godward LLP counsel for the Company, dated the Closing ~~Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements~~ Date and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes addressed to the Initial ~~Purchasers by the Company pursuant to this Agreement~~Purchaser, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and ~~scope~~ substance satisfactory to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~▇, counsel for the Initial ~~Purchasers~~Purchaser, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) The Company is a corporation duly incorporated and validly existing in good standing under the ~~representations and warranties~~ laws of the ~~Company~~ State of Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in ~~this Agreement are true~~ the Offering Memorandum and, to the best of such counsel's knowledge, is duly registered and ~~correct~~ qualified to conduct its business and is in good standing as ~~if made on~~ a foreign corporation in each jurisdiction where the nature of its properties or the conduct of its business requires such registration or qualification, except (a) in Massachusetts and ~~as of the Closing Date; and~~ New York, where the Company ~~has performed all covenants~~ is not in good standing, and ~~agreements and satisfied all conditions on its part~~ (b) where the failure so to register or qualify or to be ~~performed~~ in good standing could not, singly or ~~satisfied at or prior~~ in the aggregate with all other such failures, reasonably be expected to ~~the Closing Date; and~~have a Material Adverse Effect; (ii) ~~subsequent~~ The authorized capital stock of the Company, and to such counsel's knowledge, the number of outstanding shares of the Company's Capital Stock as of the date of the Offering Memorandum is as set forth in the second paragraph under the caption "Description of Capital Stock" in the Offering Memorandum, and to such counsel's knowledge, the number of the Company's outstanding warrants is as set forth under the caption "Warrants" in the Offering Memorandum. (iii) The Company has corporate power and authority to enter into this Agreement and the other Transaction Documents and to issue, sell and deliver the Notes, the Initial Warrants and the Contingent Warrants to be sold by it to the ~~respective dates~~ Initial Purchaser as ~~of which information is given in~~ provided herein; (iv) The Notes, the ~~Final Memorandum~~ Initial Warrants and the Contingent Warrants have been duly and validly authorized by the Company; (~~exclusive of any amendment or supplement thereto), neither~~ v) The Warrant Shares have been duly reserved by the Company ~~nor any~~ for issuance upon exercise of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceedingthe Initial Warrants in sufficient number to cover the exercise of all of the Initial Warrants at the initial number of Warrant Shares deliverable upon exercise of the Initial Warrants, and ~~there~~ the issuance of the Warrant Shares upon exercise of the Warrants has ~~not~~ been ~~any materially adverse change (including~~duly and validly authorized, ~~without limitation~~and the Warrant Shares, ~~a change~~ when paid for and delivered in ~~management or control)~~accordance with the terms of the Warrants and the Warrant Agreement, ~~or development involving a prospective materially adverse change~~will be validly issued, fully paid and nonassessable. The shares of Common Stock issuable upon exercise of the Contingent Warrants have been duly reserved by the Company for issuance upon exercise of the Contingent Warrants in sufficient number to cover the ~~condition (financial or otherwise)~~exercise of all the Contingent Warrants at the initial number of shares deliverable upon exercise of the Contingent Warrants, ~~management~~and the issuance of the initial number of shares issuable upon exercise of the Warrants has been duly and validly authorized, ~~earnings~~and such shares, ~~properties~~when paid for and delivered in accordance with the terms of the Contingent Warrants and the Initial Warrant Agreement, ~~business affairs or business prospects~~will be validly issued, ~~stockholders’ equity~~fully paid and nonassessable. To such counsel's best knowledge, ~~net worth or results~~ no holder of ~~operations~~ capital stock of the Company has preemptive or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects similar rights applicable to the Initial ~~Purchasers and counsel for~~ Warrants, or the ~~Initial Purchasers. The Company shall furnish to~~ Warrant Shares or the ~~Initial Purchasers such conformed copies~~ Contingent Warrants other than the right of ~~such opinions, certificates, letters, and documents~~ first refusal set forth in ~~such quantities as~~ the ~~Initial Purchasers shall reasonably request.~~Investors' Rights Agreement which has been waived;

Appears in 1 contract

Sources: Purchase Agreement (Coinstar Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for Notes in an amount equal to the principal amount set forth on Schedule I hereto opposite its name shall, in its sole discretion, be subject to the satisfaction of all of the following conditions on the Closing Date: (a) The Issuer shall have good title to the Managed Containers and the other Collateral, free and clear of all Liens other than Permitted Encumbrances. (b) The Issuer shall have (i) caused all Uniform Commercial Code financing statements (or documents of similar import) required to perfect the first priority security interest of the Indenture Trustee pursuant to the Indenture in the Collateral and related items, in each case, to be duly filed in the manner required by the laws of each appropriate jurisdiction, (ii) caused all Uniform Commercial Code financing statements (or documents of similar import) required to perfect the first priority security interest of the Issuer (and the Indenture Trustee as assignee of the Issuer) pursuant to the Contribution and Sale Agreement and (iii) paid, or caused to be paid, all transfer taxes, documentary stamp taxes and filing fees incurred in connection therewith. (c) All corporate and other proceedings in connection with the transactions contemplated hereby and by the Series 2012-1 Related Documents and all documents incidental thereto shall be satisfactory in form and substance to such Initial Purchaser and its counsel, and such Initial Purchaser shall have received its Notes and any other documents incident to the transactions contemplated hereby and by the Series 2012-1 Related Documents that such Initial Purchaser or its counsel shall reasonably request. Each Initial Purchaser or its counsel shall have received on the Closing Date certified copies of all documents evidencing corporate or other organizational action taken by the Issuer, CAL and the Indenture Trustee to approve the execution and delivery of this Agreement and the other Series 2012-1 Related Documents to which they are a party and the consummation of the transactions contemplated hereby and thereby. (d) The Series 2012-1 Related Documents and the Notes ~~shall~~shall conform in all material respects to the descriptions thereof contained in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum. Immediately prior to the sale of the Notes to the Initial Purchasers, the Notes shall have been executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, and this Agreement and each of the other Series 2012-1 Related Documents that is to be executed and delivered on or prior to the Closing Date shall have been executed and delivered by the Issuer, the Manager and all other parties thereto. The Initial Purchasers and the Indenture Trustee shall have received on the Closing Date a true and correct copy of each Series 2012-1 Related Document delivered on or prior to the Closing Date, and the Initial Purchasers or their authorized representative shall have received its original Notes. (e) Each Initial Purchaser or its counsel shall have received on the Closing Date signature and incumbency certificates executed by Authorized Signatories of the Issuer, CAL and the Indenture Trustee certifying the identities and signatures of those officers who executed each of this Agreement and the other Series 2012-1 Related Documents delivered in connection with Series 2012-1 to which the Issuer, CAL or the Indenture Trustee, as the case may be, is a party. (f) The purchase of the Notes by each Initial Purchaser shall be permitted by the laws and regulations to which such Initial Purchaser is subject. (g) Each of the Notes shall have been rated “A(sf)” by Standard & Poor’s, each such rating shall be in full force and effect and the Initial Purchasers shall have received on the Closing Date a letter from Standard & Poor’s dated on or before the Closing Date to such effect. (h) Subsequent to the respective dates as of which information is given in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum, there shall not have occurred (i) any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise) or in the earnings, business, operations or business prospects of the Issuer, the Manager or CAL (collectively, an “Issuer Person”), whether or not arising in the ordinary course of business that, in the sole judgment of the Initial Purchasers’ , makes it impracticable or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes, (ii) any other event or occurrence that could have a material adverse effect on the ability of the Issuer to perform any of its obligations under any Series 2012-1 Related Document to which it is a party or a material adverse effect on the value of the Managed Containers or the rights and remedies of the Indenture Trustee or any Series 2012-1 Noteholder under any Series 2012-1 Related Document, that, in the sole ~~discretion~~judgment of the Initial Purchasers, makes it impracticable or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes, (iii) a general moratorium on commercial banking activities declared by any state of the United States or United States authorities, (iv) any downgrading in, or withdrawal of, the rating (including any “shadow rating”) accorded to securities (or the placement of any such securities on any watch or similar list with negative implications) issued by any Issuer Person or the Notes of any other Series previously issued by the Issuer by any “nationally recognized statistical rating organization,” as that term is defined for purposes of Rule 436(g) under the Act, or any public announcement that any such organization has under surveillance or review its rating (including any “shadow rating”) of the Notes of any other Series previously issued by the Issuer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of the rating), (v) any outbreak or escalation of hostilities, insurrection or armed conflict in which the United States of America is involved, any declaration of war by Congress or any other national or international calamity or emergency that in the sole judgment of the Initial Purchasers makes it impractical or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes, or (vi) any material adverse change in financial, political or economic conditions having an effect on the U.S. or Western European financial markets that in the sole judgment of the Initial Purchasers makes it impractical or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes. (i) Each Initial Purchaser shall have received opinions, dated the Closing Date, addressed to such Initial Purchaser and in form and substance satisfactory to its counsel, of (i) ▇▇▇▇▇▇▇ Coie LLP, U.S. counsel to the ~~accuracy~~ Issuer and the Seller, as to (A) perfection of the Indenture Trustee’s interest in the Collateral and other UCC matters, (B) “true sale” and substantive consolidation, (C) corporate, tax and other matters, and (D) securities laws matters; (ii) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ Limited, special Bermuda counsel to the Issuer, as to (A) certain matters related to priority of the Indenture Trustee’s interest in the Collateral under Bermuda law, (B) corporate, tax and other matters, and (C) securities law matters; (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, special Barbados counsel to the Seller, as to (A) substantive consolidation and choice of law, and (B) corporate and other matters relating thereto and (iv) counsel to the Indenture Trustee, as to certain matters relating to the Indenture Trustee. (j) Each Initial Purchaser shall have received a negative assurance letter, dated the Closing Date, addressed to such Initial Purchaser and in form and substance satisfactory to its counsel, of ▇▇▇▇▇▇▇ Coie LLP, U.S. counsel to the Issuer. (k) Each Initial Purchaser shall have received one or more letters from an Independent Accountant each dated the date of the Preliminary Offering Memorandum (with respect to the Preliminary Offering Memorandum) and the Closing Date (with respect to the Offering Memorandum), in form and substance satisfactory to such Initial Purchaser and its counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” with respect to information contained in the Preliminary Offering Memorandum and the Offering Memorandum. (l) The representations and warranties of the ~~Company~~ Issuer contained ~~herein~~ in this Agreement and in the other Series 2012-1 Related Documents to which it is a party shall be true and correct as of the date hereof and as of ~~each~~ the Closing Date~~, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its~~ . The Issuer shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Series 2012-1 Related Documents on or prior to ~~the following additional conditions: (a) On~~ the Closing Date; since December 31, 2011, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations or business prospects of the Issuer; and no event shall have occurred and no condition shall exist that would constitute (or which with the giving of notice or passage of time or both would constitute) an Early Amortization Event or an Event of Default. (m) Subsequent to the respective dates as of which information is given in the Preliminary Offering Memorandum and the Offering Memorandum, other than as contemplated by the Preliminary Offering Memorandum and the Offering Memorandum, neither the Issuer nor any Issuer Person shall have entered into any transactions that are material to the business, condition (financial or otherwise) or results of operations or business prospects of Issuer or any Issuer Person, respectively. (n) Each Initial ~~Purchasers~~ Purchaser shall have received a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for~~ certificate of the ~~Company~~Issuer, dated the Closing Date, signed on its behalf by its President or any Vice President and its Chief Financial Officer or if such entity has none, its Treasurer, to the effect that: (a) The conditions precedent set forth in Section 8(l) have been satisfied. (i) ~~such counsel has no reason~~ Subsequent to ~~believe that (~~the respective dates as of which information is given in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum, other than as contemplated by the Offering Memorandum, there has not occurred (A) any material adverse change, or any development involving a prospective material adverse change, in the condition (financial ~~statements~~ or otherwise) or in the earnings, business, operations or business prospects of the Issuer, whether or not arising in the ordinary course of business, or (B) any other event or occurrence that would have a material and ~~other financial information contained therein, as~~ adverse effect on the ability of the Issuer to perform any of its obligations under any Series 2012-1 Related Document to which ~~such counsel need express no opinion~~it is a party. (ii) Subsequent to the ~~Final~~ respective dates as of which information is given in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum, other than as contemplated by the Offering Memorandum, the Issuer has not entered into any transactions that are material and adverse to the business, condition (financial or otherwise) or results of ~~its date~~ operations or business prospects of the ~~date~~ Issuer. (iii) As of ~~such opinion~~the Closing Date, ~~included or includes any~~ none of the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum contains an untrue statement of a material fact or ~~omitted or~~ omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that this representation shall not apply to statements or omissions made in reliance upon and in conformity with the Initial Purchaser Information. (iio) Each Initial Purchaser shall have received confirmation that the ~~Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ Notes have been ~~duly organized and are validly existing as corporations in good standing under the laws~~ accepted for clearance of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has secondary market trading by The Depository Trust Company. (p) The Offering Memorandum shall have been ~~advised that the failure to be so qualified would amount to a material liability or disability~~ distributed to the ~~Company and its subsidiaries~~Initial Purchasers not later than 10:00 a.m., ~~taken as a whole;~~ New York time on October 11, 2012. (q) All conditions to the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and issuance of the Notes ~~to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise~~ set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; Indenture (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) including the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a ~~legal, valid and binding~~ control agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to ~~certain legal matters relating to this Agreement and such other related matters as~~ the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing DateSeries 2012-1 Series Account, in form and substance satisfactory to ~~counsel for~~ the Initial Purchasers) shall have been satisfied. The Issuer shall have delivered a certificate to that effect to the Initial Purchasers, and all opinions delivered in connection with the satisfaction of such conditions shall be addressed to the Initial Purchasers. (dr) This Agreement has not terminated pursuant to Section 12 hereof. (s) The ~~Company shall have furnished or caused to be furnished to~~ outstanding principal balance of all Series of Notes then Outstanding does not exceed the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:Asset Base. (it) A list (which may be in the ~~representations and warranties~~ form of ~~the Company in this Agreement are true and correct as if made on and~~ a data file) of Managed Containers as of the Closing Date; , which includes the Container Identification Number for each such Managed Container, shall have been delivered, in form and ~~the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior~~ substance satisfactory to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)Initial Purchasers. (eu) ~~Subsequent~~ All of the conditions precedent to the ~~execution and delivery~~ authentication of ~~this Agreement and prior to~~ the ~~Closing Date, there~~ Series 2012-1 Notes set forth in the Series 2012-1 Supplement shall ~~not have occurred any downgrading, nor shall any notice~~ have been ~~given of any intended~~ satisfied or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Actwaived. (fv) The ~~Indenture~~ Issuer shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, furnish to the Initial Purchasers and ~~counsel for~~ the ~~Initial Purchasers shall have received~~ Rating Agency (x) such ~~further certificates~~other agreements, ~~documents or other information as they may have reasonably requested from the Company. All~~ instruments, documents, opinions, certificates, letters and ~~documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to~~ schedules as the Initial Purchasers or their counsel or the Rating Agency or its counsel reasonably may request and ~~counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such~~ (y) originals and conformed copies of ~~such~~ all opinions, certificates, letters, schedules, agreements, documents and ~~documents~~ instruments delivered pursuant to this Agreement in ~~such~~ the quantities as that the Initial Purchasers ~~shall~~ or such Rating Agency, as the case may be, may reasonably request.

Appears in 1 contract

Sources: Note Purchase Agreement (CAI International, Inc.)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation of the~~ Initial ~~Purchasers~~ Purchasers' obligations to purchase and pay for the Notes ~~shall,~~ shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to (i) the accuracy of the representations and warranties of the Company and MHI herein contained ~~herein~~ as of the date hereof and as of ~~each~~ the Closing Date, ~~as if made on and as of each Closing Date~~(ii) the absence in any certificates, opinions, written statements or letters furnished pursuant to this Section 6 to the ~~accuracy~~ Initial Purchasers or to their counsel, of any qualification or limitation not previously approved by the ~~statements of the Company’s officers made pursuant to the provisions hereof~~Initial Purchasers, to (iii) the performance by the Company and MHI of ~~its covenants~~ their respective obligations hereunder required to be performed on or prior to the Closing Date, and ~~agreements hereunder and to~~ (iv) the following additional conditions: a. Since the date of the latest balance sheet included in the Definitive Memorandum: (ai) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital b. The representations and warranties made by the Company and MHI herein shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; and the Company and MHI shall have complied in all material respects with all agreements hereunder required to be performed by the Company and MHI. c. As to each Initial Purchaser, the purchase of and payment for the Notes to be purchased by such Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation, order or other restriction. d. The Definitive Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York time, on the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may agree, and no stop order suspending the qualification or exemption from qualification of the Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. e. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Notes; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company or MHI, threatened against, the Company or MHI before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect, on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and MHI, taken as a whole. f. On the Closing Date, the Initial Purchasers shall have received the opinion of Hayn▇▇ ▇▇▇ Boon▇, ▇.L.P., counsel to the Company and MHI, dated the g. On the Closing Date, the Initial Purchasers shall have received a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company~~certificate, dated the Closing Date, to signed by each of the ~~effect that: (i) such counsel has no reason to believe that (other than~~ Chairman of the ~~financial statements~~ Board and ~~other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date~~ Vice President - Finance or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, President and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock Vice President - Finance of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and ~~the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and~~MHI, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other ~~related matters~~ certificates of executive officers as the Initial Purchasers may ~~reasonably require. In rendering such opinion~~specify confirming the matters set forth in paragraphs (a), ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (cb) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) ~~The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) ~~Subsequent to the execution and delivery~~ of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the ActSection 6. ~~(f) The Indenture shall have been executed and delivered by all the parties thereto. (g)~~ h. On the Closing Date, the Initial Purchasers shall have received ~~the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times~~ from ~~and after~~ Fulbright & Jawo▇▇▇▇ ▇.▇.P., an opinion, dated the Closing Date, addressed to the Initial Purchasers, with respect to the Company, MHI, the Offering Memorandum, the offer, sale and resale of the Notes and other related matters as the Initial Purchasers reasonably may require, and the Company shall have furnished to such firm such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. ~~(h) On or before~~ i. Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from Coopers & Lybr▇▇▇ ▇.▇.P., and on the Closing Date, the Initial Purchasers shall have received from Coopers & Lybr▇▇▇ ▇.▇.P., a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and ~~counsel for~~ to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. j. Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received ~~such further certificates~~from Hudd▇▇▇▇▇▇, ~~documents or other information as they may have reasonably requested from~~ ▇▇d on the ~~Company. All opinions~~Closing Date, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall ~~reasonably request~~have received from Hudd▇▇▇▇▇▇, ▇ letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. k. On the Closing Date, the Company shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof. l. On the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof. m. Each of the Enron Acquisition and the Conoco Acquisition shall be consummated prior to, or simultaneously with, the Closing of the offering on substantially the terms described in the Definitive Memorandum, and the Initial

Appears in 1 contract

Sources: Purchase Agreement (Michael Petroleum Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from ▇▇~~the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇ ~~Chance US LLP~~▇▇▇▇▇▇ & Zavis, counsel for the ~~Company~~Issuers, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, to the effect that: (i) ~~such counsel has no reason to believe that~~ Each of the Issuers is duly incorporated (~~other than~~ or in the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement case of a ~~material fact~~ limited partnership or ~~omitted or omits to state any material fact necessary in order to make the statements therein~~limited liability company, ~~in the light of the circumstances under which they were made~~duly formed), ~~not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are~~ validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of incorporation (or formation) and ~~are~~ has all requisite corporate (or partnership or limited liability company) power and authority to own its properties and to conduct its business as described in the Final Memorandum. Each of the Issuers is duly qualified to ~~transact~~ do business as a foreign ~~corporations and are~~ corporation (or limited partnership or limited liability company) in good standing ~~under the laws of~~ in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such ~~counsel has been advised that~~ qualification, except where the failure to be so qualified would ~~amount~~ not, individually or in the aggregate, reasonably be expected to have a ~~material liability or disability to~~ Material Adverse Effect. (ii) The Company has the ~~Company~~ authorized, issued and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described outstanding capitalization set forth in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the outstanding shares of capital stock of the Company will have been duly authorized and validly issued, fully paid and nonassessable. (iii) Based solely upon a review of the stock (or securities) transfer ledger, which was certified to us as true, correct and complete, and copies of the applicable certificates, all of the shares of capital stock of, or other securities evidencing equity ownership interests in, each Subsidiary of the Company purported to be owned by the Company or its Subsidiaries in the Final Memorandum are owned by the Company, or a Subsidiary of the Company. All of such issued and outstanding shares of capital stock of of, or other securities evidencing equity ownership interests in, each Subsidiary of the ~~Company’s significant subsidiaries~~Company (A) have been duly and validly authorized and issued, (B) are fully paid and non-assessable, (C) have not been issued in violation of any preemptive or, to such counsel's knowledge, similar rights and, (D) to such counsel's knowledge, after a review of the stock (or securities) transfer ledger, which was certified to such counsel as true, correct and complete, and copies of the applicable certificates are owned free and clear of any lien, except for liens securing obligations under the Credit Facility and liens for taxes not yet due and payable. (iv) Except as ~~otherwise~~ set forth in the Final ~~Memorandum~~Memorandum (A) there are no options, warrants or other rights to purchase from any of the Issuers shares of capital stock or ownership interests in any of the Issuers, (B) no agreements or other obligations to issue, or other rights to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in any of the Issuers are ~~owned beneficially~~ or will be outstanding and (C) no holder of securities of any of the Issuers is or will be entitled to have such securities registered under a registration statement filed by the ~~Company free and clear of any perfected security interests or,~~ Issuers pursuant to the ~~best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;~~Registration Rights Agreement. (~~iii~~v) Each of the ~~statements set forth~~ Issuers has all requisite corporate (or partnership or limited liability company) power and authority to execute, deliver and perform each of its obligations under the ~~heading “Description of~~ Indenture, the Notes~~” in~~ , the ~~Final Memorandum~~Exchange Notes, ~~insofar as such statements purport to summarize certain provisions of~~ the Private Exchange Notes and the ~~Indenture, provide a fair summary of such provisions~~Guarantees; ~~and~~ the ~~statements set forth~~ Indenture meets the requirements for qualification under the ~~heading “Certain Federal Income Tax Consequences” in~~ TIA; the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement Indenture has been duly and validly authorized, executed and delivered by the ~~Company; (v) the execution~~ Issuers and ~~delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company~~ (assuming the due authorization, execution and delivery thereof by the Trustee), constitutes the ~~Indenture will be a legal,~~ valid and legally binding agreement of the ~~Company~~Issuers, enforceable against each of the ~~Company~~ Issuers in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in ~~effect~~a court of equity or law)~~. The Indenture meets the requirements for qualification under the TIA~~. (vi) The Notes and the Guarantees are in the form contemplated by the Indenture. The Notes and the Guarantees have been duly and validly authorized by ~~all necessary corporate action~~ the applicable Issuers and, when duly executed and delivered by the applicable Issuers and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the ~~Company and, on~~ Indenture by the Trustee and as due authentication and delivery of the ~~Closing Date~~Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the applicable Issuers, entitled to the benefits of the Indenture, and enforceable against each of the applicable Issuers in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a court of equity or law). (vii) The Exchange Notes, the Private Exchange Notes ~~will~~ and the Guarantees thereof have been duly and validly authorized by the applicable Issuers, and when the Exchange Notes, the Private Exchange Notes and the Guarantees thereof have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Issuers, entitled to the benefits of the Indenture, and enforceable against each of the applicable Issuers in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in ~~effect~~a court of equity or law). (viii) Each of the ~~Company~~ Issuers has all requisite corporate (or partnership or limited liability company) power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by the ~~Company~~ Issuers (assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers~~Purchaser), ~~will be a legal,~~ and constitutes the valid and legally binding agreement of the ~~Company~~Issuers, enforceable against each of the ~~Company~~ Issuers in accordance with its ~~terms~~ terms, except that (~~subject, as~~ A) the enforcement thereof may be subject to ~~enforcement of remedies, to applicable~~ (i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in ~~effect~~ a court of equity or law) and ~~except that~~ (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) Each of the ~~execution~~ Issuers has all requisite corporate (or partnership) power and ~~delivery~~ authority to execute, deliver and perform their obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the ~~Company of~~Issuers of the transactions contemplated hereby have been duly and validly authorized, executed and ~~the performance~~ delivered by the ~~Company of its obligations under~~Issuers. (x) The Indenture, ~~this Agreement, the Registration Rights Agreement, the Indenture and~~ the Notes, the ~~Exchange Notes~~ Guarantees and the ~~Private Exchange Notes~~Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum. (xi) To the knowledge of such counsel, except as disclosed in the ~~issuance~~Final Memorandum, ~~offering and~~ no legal or governmental proceedings are pending or threatened to which any of the Issuers or any of their Subsidiaries is a party or to which the property or assets of any of the Issuers or any of their Subsidiaries is subject which, if determined adversely to any of the Issuers or any of their Subsidiaries, would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to ~~the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and~~ be sold hereunder or the consummation of the other transactions ~~herein contemplated do not~~ described in the Final Memorandum under the caption "Use of Proceeds." (xxii) ~~require~~ To the ~~consent~~knowledge of such counsel, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws none of the ~~various states~~ Issuers is (i) in violation of ~~the United States~~ its certificate or articles of ~~America and other U.S. jurisdictions~~ incorporation or bylaws (or limited partnership agreement or similar organizational document), (ii) in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any ~~of the terms and provisions of~~statute, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, except for any such breach or violation which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or (iii) in breach or default under (nor has any event occurred which, with notice or passage of time or both, would constitute a default under) or in violation of any ~~court~~ of the terms or ~~other governmental authority~~ provisions of any Contract described in the Memorandum or otherwise known to such counsel, except for any ~~arbitrator~~ such breach, default, violation or event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (xiii) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Notes to the Initial Purchaser) will not conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any Contract described in the Memorandum or otherwise known to such counsel to which any of the Issuers or their Subsidiaries is a party, except for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) the certificate or articles of incorporation or bylaws (or limited partnership agreement or similar organizational document) of any of the Issuers, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof) any statute, judgment, decree, order, rule or regulation described in the Memorandum or otherwise known to such counsel to be applicable to any of the ~~Company~~ Issuers, their Subsidiaries or ~~its significant subsidiaries;~~any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (xxiv) No consent, approval, authorization or order of any governmental authority is required for the ~~Company is not an “investment company” and, after giving effect~~ issuance and sale by the Issuers of the Securities to the ~~Offering~~ Initial Purchaser or the consummation by the Issuers of the ~~Notes~~ other transactions contemplated hereby, except such (a) as may be required under Blue Sky laws, as to which such counsel need express no opinion, (b) as may be required from the Commission in connection with the transactions contemplated by the Registration Rights Agreement and (c) as have previously been obtained. (xv) To the knowledge of such counsel, each of the Issuers and their Subsidiaries has obtained all Permits necessary to conduct the businesses now or proposed to be conducted by it as described in the Final Memorandum, the lack of which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; to the knowledge of such counsel, each of the Issuers and their Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Permit. (xvi) To the knowledge of such counsel, the Issuers and their Subsidiaries own or possess adequate licenses or other rights to use all patents, trademarks, service marks, trade names, copyrights and know-how necessary to conduct the businesses now or proposed to be operated by them as described in the Final Memorandum, and the ~~application~~ Issuers have not received any notice of ~~the proceeds therefrom~~infringement of or conflict with asserted rights of others with respect to any patents, ~~will not~~ trademarks, service marks, trade names, copyrights or know-how which, if such assertion of infringement or conflict were sustained, would reasonably be ~~an “investment company”, as such term is defined in the 1940 Act; and~~expected to have a Material Adverse Effect. (xixvii) To the knowledge of such ~~counsel does not know of any~~ counsel, there are no legal or governmental proceedings pending or threatened ~~to which~~ against any of the ~~Company~~ Issuers, their Subsidiaries or any of ~~its subsidiaries is a party~~ their respective properties or to assets which ~~the property of the Company or any of its subsidiaries is subject that~~ would be required to be described in a prospectus pursuant to the Act that are not described in the Final ~~Memorandum or~~ Memorandum, nor are there any ~~statutes, regulations,~~ material contracts or other documents ~~that~~ which would be required to be described in a prospectus pursuant to the Act that are not described ~~or incorporated~~ in the Final Memorandum. (~~xii~~xviii) ~~commencing with~~ None of the ~~Company’s taxable year ended December 31~~Issuers is, ~~1998,~~ nor immediately after the ~~Company was organized~~ sale of the Notes to be sold hereunder and ~~has operated~~ the application of the proceeds from such sale (as described in ~~conformity with~~ the ~~requirements for qualification as a real estate investment trust (“REIT”)~~ Final Memorandum under the ~~Code~~caption "Use of Proceeds") will be, ~~and~~ an "investment company" as such term is defined in the ~~Company’s present and proposed method~~ Investment Company Act of ~~operation~~1940, as ~~represented by the Company, will permit the Company to continue to so qualify~~amended. (~~xiii~~xix) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial ~~Purchasers~~ Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of ~~the~~ a Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are ~~qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”)~~ Qualified Institutional Buyers or Accredited Investors or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial ~~Purchasers’~~ Purchaser's representations in Section 8 and those of the ~~Company~~ Issuers contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial ~~Purchasers~~ Purchaser and the initial resale thereof and (iii) the due performance by the Initial ~~Purchasers~~ Purchaser of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (bxx) ~~The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for~~ Neither the ~~Initial Purchasers, dated~~ consummation of the ~~Closing Date, with respect to certain legal matters relating to~~ transactions contemplated by this Agreement ~~and such other related matters as~~ nor the ~~Initial Purchasers may reasonably require. In rendering such opinion~~sale, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersissuance, execution or delivery of the Notes will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. (cxxi) The ~~Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively,~~ statements under the ~~date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.~~ captions "Risk Factors-- Reliance on Third Party Reimbursement," "Risk Factors--Extensive Government Regulation," "Use of Proceeds," "Business--Dialysis Industry Overview" (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement theretolast paragraph only), ~~neither the Company nor any~~ "Business--Sources of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Revenue Reimbursement," "Business--Regulatory Matters," "Management-- Employment Agreements," "Management--Voting Agreements," "Certain Relationships

Appears in 1 contract

Sources: Purchase Agreement (Everest One Ipa Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from ▇▇▇▇▇~~the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Squire, Sand▇▇▇ ~~Chance US LLP~~& ▇emp▇▇▇ ▇.▇.P., counsel for the Company, in form and substance satisfactory to counsel to the Initial Purchasers, dated the Closing Date, substantially to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the The Company and each of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have~~ Subsidiaries has been duly organized ~~and are validly existing as corporations in good standing~~ under the laws of ~~their respective jurisdictions~~ a state within the United States of ~~incorporation~~ America, is validly existing and ~~are duly qualified to transact business as foreign corporations and are~~ is in good standing as a corporation under the laws of its jurisdiction of incorporation, with all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets~~ conduct its business as now conducted, and ~~conduct their respective businesses~~ as described in the Final Memorandum, ; each of the Company and the Subsidiaries is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions where, to the knowledge of such counsel, the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect. (ii) The Company has ~~corporate power~~ the authorized and, to ~~enter into this Agreement~~the knowledge of such counsel, issued capital stock set forth in the ~~Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it;~~ Final Memorandum. The Company owns all of the ~~issued and~~ outstanding capital stock of the Subsidiaries. All of the outstanding shares of capital stock of ~~each~~ the Company and the Subsidiaries as of the ~~Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum~~Closing Date are duly authorized and validly issued, are ~~owned beneficially by the Company free~~ fully paid and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;nonassessable and were not issued (iii) ~~the statements set forth~~ The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the ~~heading “Description of~~ Notes” . The Notes, when issued, will be in the ~~Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and~~ form contemplated by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement . The Notes have been duly ~~authorized by all necessary corporate action of the Company~~ and ~~the Agreement has been duly~~ validly authorized, executed and delivered ~~by the Company; (v) the execution and delivery of the Indenture have been duly authorized~~ by the Company and, when authenticated by the Notes Trustee in accordance with the provisions of the Indenture and when delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Company, will be entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law). (iv) The Global Note (as such term is defined in the Indenture) is in the form contemplated by the Indenture. The Global Note has been duly and validly authorized, executed and delivered by the Company ~~(assuming the due authorization~~and, ~~execution and delivery thereof~~ when authenticated by the ~~Trustee),~~ Notes Trustee in accordance with the provisions of the Indenture and when delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Company, will be entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a ~~legal~~proceeding in equity or at law). (v) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture meets the requirements for qualification under the TIA. The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms (subject~~terms, except as ~~to enforcement of remedies~~the enforceability thereof may be limited by bankruptcy, ~~to applicable bankruptcy~~insolvency, reorganization, ~~insolvency, moratorium~~ fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors’ ' rights generally ~~from time to time~~ and by general equitable principles (regardless of whether the issue of enforceability is considered in ~~effect~~a proceeding in equity or at law)~~. The Indenture meets the requirements for qualification under the TIA~~. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes ~~and the Private Exchange Notes are~~ have been duly executed and delivered by the Company and authenticated by the Notes Trustee in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms (subject~~terms, except as ~~to enforcement of remedies~~the enforceability thereof may be limited by bankruptcy, ~~to applicable bankruptcy~~insolvency, reorganization, ~~insolvency, moratorium~~ fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors’ ' rights generally ~~from time to time~~ and by general equitable principles (regardless of whether the issue of enforceability is considered in ~~effect~~a proceeding in equity or at law).; (~~viii~~vii) ~~the~~ The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement~~; the~~ . The Registration Rights Agreement has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by the Company ~~(assuming due authorization, execution~~ and ~~delivery thereof by the Initial Purchasers), will be~~ constitutes a ~~legal,~~ valid and legally binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its ~~terms~~ terms, except (~~subject~~A) as the enforceability thereof may be limited by bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency, moratorium~~ fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors’ ' rights generally ~~from time to time~~ and by general equitable principles (regardless of whether the issue of enforceability is considered in ~~effect~~ a proceeding in equity or at law), and ~~except~~ (B) that any rights to indemnity or contribution thereunder may be limited by federal ~~and~~ or state securities laws ~~and~~ or public policy considerations. (viii) Each of the Subsidiaries has all requisite corporate power and authority to execute, deliver and perform its obligations under its respective Subsidiary Guarantee. Each Subsidiary Guarantee has been duly and validly authorized, executed and delivered by the applicable Subsidiary and will constitute a valid and legally binding agreement of such Subsidiary enforceable against such Subsidiary in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law). (ix) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the ~~execution~~ transactions contemplated hereby. This Agreement has been duly and ~~delivery~~ validly authorized, executed and delivered by the ~~Company of~~Company. (x) No consent, ~~and~~ approval, authorization or order of any court or governmental agency or body or, to the knowledge of such counsel, third party is required for the execution, delivery or performance by the Company or any Subsidiary of ~~its obligations under,~~ this Agreement, the Registration Rights ~~Agreement,~~ Agreement or the ~~Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers~~ consummation by the Company ~~pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation~~ or any of the ~~other~~ Subsidiaries of the transactions ~~herein~~ contemplated ~~do not (x) require~~ hereby or thereby that are to be completed prior to or on the ~~consent, approval, authorization, registration or qualification of or with any governmental authority~~date hereof, except such as have been obtained or ~~made (~~disclosed in the Final Memorandum and ~~specified in such opinion) or~~ such as may be required ~~by the~~ under state securities or "Blue ~~Sky~~ Sky" laws ~~of the various states of the United States of America and other U.S. jurisdictions~~ in connection with the ~~offer~~ purchase and ~~sale~~ resale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws Purchasers. None of the Company or any of the Subsidiaries is (i) in violation of its ~~significant subsidiaries~~certificate of incorporation or bylaws (or similar organizational document), (ii) in breach or violation of any ~~statute or any~~ statute, judgment, decree, order, rule or regulation ~~of any court or other governmental authority or any arbitrator~~ known to such counsel ~~and~~ applicable to ~~the Company~~ any of them or ~~its significant subsidiaries;~~ any of their respective properties or assets, or (xiii) ~~the Company is not an “investment company” and~~in breach of or in default under (nor has any event occurred which, ~~after giving effect to the Offering~~ with notice or passage of time or both, would constitute a default under) or in violation of any of the ~~Notes and the application~~ terms or provisions of ~~the proceeds therefrom, will not be an “investment company”, as~~ any Contracts known to such ~~term is defined in the 1940 Act; and~~counsel. (xi) The execution, delivery and performance by the Company and the Subsidiaries of this Agreement, the Indenture, the Registration Rights Agreement and the Subsidiary Guarantees and the consummation (xii) To the knowledge of such ~~counsel does~~ counsel, there is not ~~know of any legal or governmental proceedings~~ pending or ~~threatened~~ threatened, any action, suit, proceeding, inquiry, investigation or legislative mandate to which the Company or any of ~~its subsidiaries~~ the Subsidiaries is a ~~party~~ party, or to which the property or assets of the Company or any of ~~its subsidiaries is subject that~~ the Subsidiaries are subject, before or brought by any court, arbitrator or governmental agency or body which are reasonably likely to, individually or in the aggregate, have a Material Adverse Effect or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Preliminary Memorandum and the Final Memorandum. (xiii) Neither the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Notes will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System, in each case as in effect, or as the same may hereafter be in effect, on the date hereof. (xiv) To the knowledge of such counsel, there are no legal or governmental proceedings involving or affecting the Company or any Subsidiary or any of their respective properties or assets which would be required to be described in a prospectus forming part of a registration statement filed with the Commission pursuant to the Act that are not described in the Preliminary Memorandum or the Final Memorandum. (xv) Neither the Company nor any of the Subsidiaries is or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds from such sale (as described in the Final Memorandum under the caption "Use of Proceeds") will be (i) an "investment company" or ~~any statutes~~"promoter" or principal "underwriter" for an "investment company" or a company controlled by an investment company within the meaning of the Investment Company Act of 1940, ~~regulations~~as amended, ~~contracts~~ and the rules and regulations thereunder or ~~other documents that would be required to be described~~ (ii) a "holding company" or a "subsidiary company" of a holding company or an "affiliate" thereof within the meaning of the Public Utility Holding Company Act of 1935, as amended. (xvi) The Notes, the Exchange Notes, the Registration Rights Agreement and the Indenture will conform in ~~a prospectus pursuant~~ all material respects to the ~~Act that are not described or incorporated~~ descriptions thereof in the Final Memorandum. (~~xii~~xvii) ~~commencing with~~ To the ~~Company’s taxable year ended December 31~~knowledge of such counsel, ~~1998,~~ no holder of securities of the Company ~~was organized and has operated in conformity with~~ nor any of the Subsidiaries will be entitled to have such securities registered under the registration statements required to be filed by the Company pursuant to the Registration Rights Agreement other than as expressly permitted thereby. (xviii) The Notes satisfy the eligibility requirements ~~for qualification as a real estate investment trust (“REIT”~~of Rule 144A(d)(3) under the ~~Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify~~Act. (~~xiii~~xix) The statements in the Final Memorandum under the caption "Description of Capital Stock", and "Description of Notes", insofar as they describe the provisions of the documents and instruments therein described, constitute fair summaries thereof and are accurate in all material respects; (xx) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers ~~as contemplated by this Agreement and the Final Memorandum~~ or ~~in connection with~~ the initial resale of the Notes by the Initial Purchasers in ~~accordance with Section 8 of~~ the manner contemplated by this ~~Agreement,~~ Agreement and the Final Memorandum and prior to the commencement of the Notes Exchange Offer ~~(as defined in~~ and the ~~Registration Rights Agreement)~~ Debenture Exchange Offer or the effectiveness of the Shelf Registration Statement or the Debenture Shelf Registration Statement (as defined in the Registration Rights Agreement or the Debenture Registration Rights Agreement, as the case may be), it being understood that no opinion is expressed as to any subsequent resale of the ~~Indenture is not required~~ Notes, and the Indenture (xxi) The Company has all requisite corporate power and authority to ~~be qualified~~ execute, deliver and perform its obligations under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale Acquisition Agreements. Each of the ~~Notes is made in an offshore transaction as defined in Regulation S~~Acquisition Agreements has been duly and validly authorized, ~~(ii)~~ executed and delivered by the ~~accuracy of the Initial Purchasers’ representations in Section 8~~ Company and ~~those~~ constitutes a valid and legally binding agreement of the Company ~~contained~~ enforceable against the Company in ~~this Agreement regarding~~ accordance with its terms, except as the ~~absence~~ enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a ~~general solicitation~~ proceeding in ~~connection with~~ equity or at law). (xxii) To the ~~sale~~ knowledge of such ~~Notes~~ counsel, the Company and each of the Subsidiaries possesses all Permits presently required or necessary to own or lease, as the ~~Initial Purchasers~~ case may be, and to operate its respective properties and to carry on its respective businesses as now or proposed to be conducted as described in the Preliminary Memorandum and the ~~initial resale thereof and (iii) the due performance by the Initial Purchasers~~ Final Memorandum, each of the ~~agreements set forth~~ Company and the Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in ~~Section 8 hereof~~any other material impairment of the rights of the holder of any such Permit, and none of the Company or the Subsidiaries has received any notice of any proceeding relating to revocation or modification of any such Permit, except as described in the Final Memorandum. In rendering ~~any~~ such opinion, such counsel may ~~rely, as to matters of fact,~~ (A) state that such counsel's opinion is limited to the ~~extent such counsel deems proper, on certificates~~ federal law of ~~responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or~~ the United States or and the laws of the States of Ohio and New York and the General Corporation Law of the State of ~~Delaware,~~ In addition to the ~~extent satisfactory~~ foregoing, such counsel shall state that is has participated in conferences with directors, executive officers and other representatives of the Company, representatives of the Company's independent public accountants, at which conferences the contents of the Final Memorandum and related matters were discussed, and although such counsel has not independently verified and has not passed upon or assumed any responsibility for the accuracy, completeness or fairness of the statements contained in such documents, no facts have come to such counsel's attention to lead it to believe that the Final Memorandum and any further amendments or supplements thereto as of their respective dates and on the date of such opinion letter contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any view with respect to the financial statements and related notes, the financial statement schedules and the other financial, statistical and accounting data included in the Final Memorandum). The opinion of Squire, Sand▇▇▇ & ▇emp▇▇▇ ▇.▇.P. described in this Section shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein. (b) On the Closing Date, the Initial Purchasers shall have received opinions, in form and ~~scope~~ substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of White & Case and Snel▇ & ▇ilm▇▇ ▇.▇.P. counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, White & Case and Snel▇ & ▇~~▇▇▇~~ilm▇▇ ▇.▇~~▇▇▇▇ & ▇▇▇▇▇▇▇ LLP~~ .P. shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.rea

Appears in 1 contract

Sources: Purchase Agreement (American Architectural Products Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇~~▇ Chance US LLP~~, counsel for the ~~Company~~Issuers, ~~dated~~ in form and substance reasonably satisfactory to counsel for the ~~Closing Date~~Initial Purchasers, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the The Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act)~~ Subsidiaries have been duly ~~organized~~ incorporated and are validly existing ~~as corporations~~ and in good standing under the laws of their respective jurisdictions of incorporation and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ have all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to ~~own, lease and operate~~ own their ~~respective~~ properties and ~~assets and~~ to conduct their ~~respective businesses~~ business as described in the Final Memorandum; PROVIDED that no opinion as to good standing need be expressed with respect to VAD International, Inc. subsequent to June 25, 1997. (ii) Except as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the ~~issued and~~ outstanding shares of capital stock of ~~each of~~ the Subsidiaries are owned, directly or indirectly, by the Company~~’s significant subsidiaries~~, ~~except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company~~ free and clear of ~~any~~ all perfected security interests orand, to the best knowledge of such counsel, ~~any~~ free and clear of all other ~~security interests,~~ liens, encumbrances, equities and claims or ~~claims, except for pledges~~ restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of ~~subsidiary stock under debt instruments;~~certain jurisdictions) or voting. (iii) ~~the statements~~ Except as set forth ~~under the heading “Description of Notes”~~ in the Final Memorandum, ~~insofar as~~ to the best of such ~~statements purport to summarize certain provisions~~ counsel's knowledge, no holder of securities of the ~~Notes and~~ Company or any Subsidiary is entitled to have such securities registered under a registration statement filed by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus Issuers pursuant to the ~~Act and the Exchange Act and the respective rules and regulations thereunder;~~Registration Rights Agreement. (iv) ~~the execution and delivery of this Agreement have been duly authorized by all necessary corporate action~~ Each of the Issuers has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Company has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Notes, the Exchange Notes and the ~~Agreement~~ Private Exchange Notes; the Guarantors have all requisite corporate power and authority to execute, deliver and perform each of their obligations under the Guarantees; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly and validly authorized, executed and delivered by ~~the Company; (v) the execution and delivery~~ each of the ~~Indenture have been duly authorized by the Company and, when duly executed~~ Issuers and ~~delivered by the Company~~ (assuming the due authorization, execution and delivery thereof by the Trustee), ) constitutes the ~~Indenture will be a legal,~~ legally valid and binding agreement of each of the ~~Company~~Issuers, enforceable against the ~~Company~~ Issuers in accordance with its ~~terms~~ terms, except that the enforcement thereof may be limited or qualified by (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~moratorium, ~~moratorium~~ fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting ~~creditors’~~ the rights ~~generally from time to time~~ and remedies of creditors and (ii) general principles of equity, whether enforcement is considered in ~~effect). The Indenture meets~~ a proceeding in equity or at law, and the ~~requirements for qualification under~~ discretion of the ~~TIA~~court before which any proceeding therefor may be brought. (viv) The Notes are in the form contemplated by the Indenture. The Notes have each been duly ~~authorized by all necessary corporate action of the Company and~~and validly authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ legally valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and will be entitled to the benefits of the Indenture~~; no holder~~ , and will be enforceable against the Company in accordance with their terms, except that the enforcement thereof may be limited or qualified by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of ~~securities~~ creditors and (ii) general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the ~~Company has~~ court before which any ~~right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act~~ proceeding therefor may be brought. (vi) The Guarantees are in the ~~offering of the Notes contemplated by this Agreement or in the Exchange Offer~~ form contemplated by the ~~Registration Rights Agreement;~~Indenture. The Guarantees have each been duly and validly authorized, executed and delivered by the Subsidiaries and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Guarantees by the Trustee in accordance with the Indenture), will constitute the legally valid and binding obligations of the Subsidiaries, and will be enforceable against the Subsidiaries in accordance with their terms, except that the enforcement thereof may be limited or qualified by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors and (ii) general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought. (vii) The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, the Guarantees to be endorsed on the Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the ~~Company~~Guarantors and, ~~and~~ when the Exchange Notes and Guarantees thereof and the Private Exchange Notes ~~are~~ have been duly executed and delivered by the ~~Company~~ Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ legally valid and binding obligations of the ~~Company~~Issuers, be entitled to the benefits of the Indenture, and be enforceable against the Issuers in accordance with their ~~terms~~ terms, except that the enforcement thereof may be limited or qualified by (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~moratorium, ~~moratorium~~ fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting ~~creditors’~~ the rights ~~generally from time to time~~ and remedies of creditors and (ii) general principles of equity, whether enforcement is considered in ~~effect)~~a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought. (viii) Each of the ~~Company~~ Issuers has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by each of the ~~Company~~ Issuers and (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Initial

Appears in 1 contract

Sources: Purchase Agreement (Federal Data Corp /Fa/)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes ~~shall,~~ shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Choa▇▇, ▇▇ll & Stew▇▇▇, ▇▇~~▇▇▇ Chance US LLP, counsel~~ unsel for the Company, in form and substance reasonably satisfactory to counsel to the Initial Purchasers, dated the Closing Date, substantially to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the The Company and each of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have~~ Significant Subsidiaries has been duly ~~organized and are~~ organized, is validly existing ~~as corporations~~ and is in good standing as a corporation, limited partnership or limited liability company, as the case may be, under the laws of ~~their respective jurisdictions~~ its jurisdiction of incorporation ~~and are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ or formation, with all ~~other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability~~ requisite corporate or ~~disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ partnership power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets~~ conduct its business as, to such counsel's knowledge, now conducted, and ~~conduct their respective businesses~~ as described in the Final Memorandum, ; each of the Company and the ~~Company has corporate power~~ Significant Subsidiaries is duly qualified to ~~enter into this Agreement~~do business as a foreign corporation, limited partnership or limited liability company in good standing in those jurisdictions set forth on an annex to such opinion. (ii) To such counsel's knowledge, the ~~Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it;~~ Company, directly or indirectly, owns all of the ~~issued and~~ outstanding capital stock or other equity interests of the Significant Subsidiaries. The Company's authorized capital stock is as set forth in the Offering Memorandum. To such counsel's knowledge, all of the outstanding shares of capital stock of ~~each~~ the corporate Significant Subsidiaries as of the ~~Company’s significant subsidiaries~~Closing Date are duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; except as ~~otherwise~~ set forth in the Final Memorandum, ~~are owned beneficially by the Company free and clear of any perfected security interests or,~~ to the ~~best~~ knowledge of such counsel, there are no (i) options, warrants or other rights to purchase from the Significant Subsidiaries, (ii) agreements or other obligations of the Significant Subsidiaries to issue or (iii) other rights to convert any obligation into, or exchange any securities for, shares of capital stock of, or other ~~security interests~~equity securities in, ~~liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;~~the Significant Subsidiaries outstanding. (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the ~~Registration Rights Agreement;~~ Notes. The Global Note (as such term is defined in the ~~Registration Rights Agreement~~ Indenture) is in the form contemplated by the Indenture. The Global Note has been duly ~~authorized~~ and validly authorized, executed and delivered by the Company and, when ~~duly executed and delivered~~ authenticated by the ~~Company (assuming due authorization, execution~~ Notes Trustee in accordance with the provisions of the Indenture and ~~delivery thereof~~ when delivered to and paid for by the Initial ~~Purchasers)~~Purchasers in accordance with the terms of this Agreement, will ~~be a legal,~~ constitute valid and legally binding ~~agreement~~ obligations of the Company, will be entitled to the benefits of the Indenture and will be enforceable against the Company in accordance with its ~~terms (subject~~terms, except as ~~to enforcement of remedies~~the enforceability thereof may be limited by bankruptcy, ~~to applicable bankruptcy~~insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law). (iv) The Company and each applicable Significant Subsidiary has all requisite corporate or partnership power and authority to execute, deliver and perform their obligations under the Indenture. The Indenture meets the requirements for qualification under the TIA. The Indenture has been duly and validly authorized, executed and delivered by the Company and each applicable Significant Subsidiary and constitutes a valid and legally binding agreement of the Company and each applicable Significant Subsidiary, enforceable against the Company and each applicable Significant Subsidiary in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, ~~moratorium~~ reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors’ ' rights generally ~~from time~~ and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law). (v) The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes have been duly executed and delivered by the Company and authenticated by the Notes Trustee in accordance with the terms of the Registration Rights Agreement and the Indenture, will constitute the valid and legally binding obligations of the Company, entitled to ~~time~~ the benefits of the Indenture, and enforceable against the Company in ~~effect~~ accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law); (vi) The Company and each applicable Significant Subsidiary has all requisite corporate or partnership power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement. The Registration Rights Agreement has been duly and validly authorized, executed and delivered by the Company and each applicable Significant Subsidiary and constitutes a valid and legally binding agreement of the Company and each applicable Significant Subsidiary enforceable against the Company and each applicable Significant Subsidiary in accordance with its terms, except (A) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and (B) that any rights to indemnity or contribution thereunder may be limited by federal ~~and~~ or state securities laws ~~and~~ or public policy considerations. (vii) Each applicable Significant Subsidiary has all requisite corporate or partnership power and authority to execute, deliver and perform its obligations under its respective Note Guarantee. Each Note Guarantee has been duly and validly authorized, executed and delivered by the applicable Significant Subsidiary and constitutes a valid and legally binding agreement of such Significant Subsidiary enforceable against such applicable Significant Subsidiary in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or conveyance or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law). (viii) Each applicable Significant Subsidiary providing security for the Notes has all requisite corporate or partnership and authority to execute, deliver and perform its obligations under its respective Mortgages. Each Mortgage has been duly and validly authorized, executed and delivered by the applicable Significant Subsidiary. (ix) The Company and each applicable Significant Subsidiary has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the ~~execution~~ transactions contemplated hereby. This Agreement has been duly and ~~delivery~~ validly authorized, executed and delivered by the Company ofand each applicable Significant Subsidiary. (x) No consent, ~~and~~ approval, authorization or order of any court or governmental agency or body or, to the knowledge of such counsel, third party is required for the execution, delivery or performance by the Company or any applicable Significant Subsidiary of ~~its obligations under,~~ this Agreement, ~~the Registration Rights Agreement, the Indenture and~~ the Notes, the Exchange ~~Notes and the Private Exchange~~ Notes, the ~~issuance~~Note Guarantees, ~~offering and sale of~~ the ~~Notes to~~ Mortgages, the ~~Initial Purchasers~~ Registration Rights Agreement or the Indenture or the consummation by the Company ~~pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation~~ or any of the ~~other~~ applicable Significant Subsidiaries of the transactions ~~herein~~ contemplated ~~do not (x) require~~ hereby or thereby that are to be completed prior to or on the ~~consent, approval, authorization, registration or qualification of or with any governmental authority~~date hereof, except such as have been obtained or ~~made (~~disclosed in the Final Memorandum and ~~specified in such opinion) or~~ such as may be required ~~by the~~ under state securities or "Blue ~~Sky~~ Sky" laws ~~of the various states of the United States of America and other U.S. jurisdictions~~ in connection with the ~~offer~~ purchase and ~~sale~~ resale of the Notes by the Initial Purchasers and ~~except those that~~ such as may be ~~required by the Act or the TIA~~ necessary in connection with the ~~exchange offer~~ Mortgages and any security interests provided to the Notes Trustee for the benefit of the holders of the Notes. Such counsel may note that the Company will be required to make certain securities law filings following the Closing Date in connection with the transactions contemplated hereby. (xi) The execution, delivery and performance by the Company and the applicable Significant Subsidiaries of this Agreement, the Notes, the Exchange Notes, the Private Exchange Notes, the Mortgages, the Note Guarantees, the Indenture and the Registration Rights ~~Agreement~~Agreement and the consummation by the Company and the applicable Significant Subsidiaries of the transactions contemplated hereby and thereby, ~~or (y)~~ and the fulfillment of the terms thereof, will not conflict with or constitute or result in a breach of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) to the knowledge of such counsel and assuming that the net proceeds of the Notes will be used as set forth in the Final Memorandum and that, except as indicated in the Final Memorandum, all credit facilities and loan agreements and related documents of the Company and the Significant Subsidiaries will be paid in full (including any applicable prepayment penalties), and terminated as of the Closing Date, the terms ~~and~~ or provisions ~~of, or constitute a default under,~~ of any ~~indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel,~~ Contract to which the Company or ~~any of its significant subsidiaries~~ the applicable Significant Subsidiary is a party or by to which ~~the Company or any of its significant subsidiaries or any of their respective properties are~~ it is bound, except such conflicts, breaches, defaults or violations, that would not, individually or in the ~~charter documents~~ aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or by-laws (or similar organizational document) of the Company or any of ~~its significant subsidiaries~~the Significant Subsidiaries, or (iii) to the knowledge of such counsel, any ~~statute or any~~ statute, judgment, decree, order, rule or regulation ~~of any court or other governmental authority or any arbitrator known to such counsel and~~ applicable to the Company or ~~its significant subsidiaries;~~any of the Significant Subsidiaries or any of their respective properties or assets except such conflicts, breaches, defaults or violations that would not, individually or in the aggregate, have a Material Adverse Effect. (xxii) Neither the Company nor any of the applicable Significant Subsidiaries is ~~not an “investment company” and,~~ or immediately after ~~giving effect to~~ the ~~Offering~~ sale of the Notes to be sold hereunder and the application of the proceeds ~~therefrom, will not be an “investment company”,~~ from such sale (as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum under the caption "Use of Proceeds") will be an "investment company" or ~~any statutes~~a company controlled by an investment company within the meaning of the Investment Company Act of 1940, ~~regulations~~as amended, ~~contracts or other documents that would be required to be described~~ and the rules and regulations thereunder. (xiii) The Notes, the Exchange Notes, the Note Guarantees, the Mortgages, the Registration Rights Agreement and the Indenture conform in ~~a prospectus pursuant~~ all material respects to the ~~Act that are not described or incorporated~~ descriptions thereof in the Final Memorandum. (~~xii~~xiv) ~~commencing with~~ To the ~~Company’s taxable year ended December 31~~knowledge of such counsel, ~~1998,~~ no holder of securities of the Company ~~was organized and has operated in conformity with~~ nor any of the Subsidiaries will be entitled to have such securities registered under the registration statements required to be filed by the Company pursuant to the Registration Rights Agreement other than as expressly permitted thereby. (xv) The Notes satisfy the eligibility requirements ~~for qualification as a real estate investment trust (“REIT”~~of Rule 144A(d)(3) under the ~~Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify~~Act. (~~xiii~~xvi) No registration under the Act of the Notes and no qualification of the Indenture under the TIA is required in connection with the sale of the Notes to the Initial Purchasers ~~as contemplated by this Agreement and the Final Memorandum~~ or ~~in connection with~~ the initial resale of the Notes by the Initial Purchasers in ~~accordance with Section 8 of~~ the manner contemplated by this ~~Agreement~~Agreement and the Final Memorandum, ~~and prior~~ it being understood that no opinion is expressed as to ~~the commencement~~ any subsequent resale of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, Notes in each case assuming (i~~) (A~~) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“"QIBs~~”) or (B) that the offer or sale of~~ "), and acquire the Notes ~~is made~~ in ~~an offshore~~ a transaction ~~as defined in Regulation S~~pursuant to Rule 144A, and (ii) the accuracy of the ~~Initial Purchasers’~~ representations ~~in Section 8~~ and ~~those~~ warranties of ~~the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to~~ the Initial Purchasers and ~~the initial resale thereof and (iii) the~~ due performance by the Initial Purchasers of the agreements in each case as set forth in Section 8 hereof. In rendering ~~any~~ such opinion, such counsel may ~~rely~~(A) state that such counsel's opinion is limited to the federal law of the United States and the laws of the Commonwealth of Massachusetts and the General Corporation Law of the State of Delaware, (B) rely as to matters involving the application of laws of the State of New York, upon the opinion of Jone▇, ▇▇y, Reav▇▇ & ▇ogu▇, ▇▇unsel for the Initial Purchasers and (C) as to matters of fact, to the extent ~~such counsel deems~~ they deem proper, on certificates of responsible officers of the Company and public officials ~~and~~and the representations and warranties contained in this Agreement. It is understood that such counsel need not express any opinion as to the content of or effect on the Company or any Subsidiary, or the application to this Agreement or any other agreement contemplated hereby or the transactions contemplated hereby or thereby of any law, statute, rule or regulation relating to the acquisition, development, sale, financing, registration, licensing or similar matter relating to real estate or timeshare interests. Such counsel has not acted, and does not act, as counsel to ~~matters involving~~ the ~~application~~ Company or any of ~~laws~~ its Subsidiaries in connection with any of ~~any jurisdiction~~ such matters. In addition to the foregoing, such counsel shall state that is has participated in conferences with executive officers and other ~~than the State of New York or the United States or the General Corporation Law~~ representatives of the ~~State~~ Company, representatives of ~~Delaware~~the Company's independent public accountants, ~~to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to~~ the Initial Purchasers and counsel for the Initial ~~Purchasers covering matters reasonably requested by~~ Purchasers, at which conferences the ~~Initial Purchasers. References to~~ contents of the Final Memorandum and related matters were discussed, and although such counsel has not independently verified and has not passed upon or assumed any responsibility for the accuracy, completeness or fairness of the statements contained in ~~this subsection~~ the Final Memorandum, and on the basis of the foregoing no facts have come to such counsel's attention to lead it to believe that the Final Memorandum and any further amendments or supplements thereto as of their respective dates and on the date of such opinion letter contained or contains an untrue statement of a material fact or omitted or omits to state a material fact, necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (~~a) shall include~~ it being understood that such counsel need not express any ~~amendment or supplement thereto prepared~~ view with respect to the financial statements (including the notes thereto), financial statement schedules and the other financial data included in ~~accordance with~~ the ~~provisions~~ Final Memorandum). The opinion of ~~this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from~~ Choa▇▇, ▇▇ll & ▇tew▇▇▇ ▇▇▇~~▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to~~ cribed in this ~~Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP~~ Section shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be ~~furnished~~ rendered to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties request of the Company ~~in this Agreement are true~~ and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)shall so state therein. (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (gb) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, ~~certificates, letters~~ in form and ~~documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are~~ substance reasonably satisfactory ~~in all material respects~~ to the Initial ~~Purchasers~~ Purchasers, dated as of the Closing Date and ~~counsel for~~ addressed to the Initial Purchasers: (i) of counsel licensed in each state in which any of the Pledged Properties are located. ~~The Company~~ Such opinions shall ~~furnish~~ cover such matters as are reasonably requested by the Initial Purchasers, including the following: (A) each Mortgage, when filed in the appropriate recording office, will constitute a valid first lien on the Pledged Property identified therein, subject only to the ~~Initial Purchasers such conformed copies~~ lien of ~~such opinions, certificates, letters~~taxes and assessments not yet due and payable, and ~~documents in~~ such ~~quantities~~ covenants, conditions, and restrictions of record (other than liens for the payment of money) as existed at the ~~Initial Purchasers shall reasonably request.~~time of acquisition thereof by the Guar▇▇▇▇▇ ▇▇ Subsidiary executing the Mortgage and such other covenants, conditions, and restrictions of record thereafter executed by, or consented to by, the Subsidiary Guarantor executing the Mortgage which do not adversely affect the marketability of title to, or th

Appears in 1 contract

Sources: Purchase Agreement (Bluegreen Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall,~~ hereunder shall be subject, in ~~the Initial Purchasers’ sole~~ their discretion, to the ~~accuracy of the~~ condition that all representations and warranties and other statements of the Company ~~contained~~ herein ~~as of the date hereof~~ are, at and as of each ~~Closing Date~~Time of Delivery, ~~as if made on~~ true and ~~as of each Closing Date~~correct, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by~~ condition that the Company shall have performed all of its ~~covenants~~ obligations hereunder theretofore to be performed, and ~~agreements hereunder and to~~ the following additional conditions: ~~(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from~~ ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, shall have furnished to you such opinion or opinions, dated ~~the Closing Date~~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~~request to enable them to pass upon such matters; ▇. ~~In rendering such opinion,~~ ▇▇▇▇▇▇ Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to you its written opinion, dated such Time of Delivery, in form and substance agreed to by the parties prior to the date hereof; c. On the date of the Offering Memorandum concurrently with the execution of this Agreement and also at each Time of Delivery, ▇▇▇▇▇ & Young LLP shall have ~~received and may rely upon such certificates and other documents and information as it may reasonably request~~ furnished to ~~pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP~~ you a letter or ~~letters dated~~letters, ~~respectively,~~ dated the ~~date hereof and the Closing Date~~respective dates of delivery thereof, in form and substance satisfactory to ~~counsel for the Initial Purchasers.~~you; (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither i. Neither the Company nor any of its subsidiaries ~~has~~ shall have sustained since the date of the latest audited financial statements included in the Pricing Memorandum any ~~material~~ loss or interference with ~~their respective businesses or properties~~ its business from fire, ~~flood~~explosion, ~~hurricane, accident~~ flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any legal~~ court or governmental ~~proceeding~~action, order or decree, otherwise than as set forth or contemplated in the Pricing Memorandum, and (ii) since the respective dates as of which information is given in the Pricing Memorandum there ~~has~~ shall not have been any ~~materially adverse change (including, without limitation, a~~ change in ~~management~~ the capital stock (other than the issuance or ~~control)~~grant of securities pursuant to employee equity incentive plans existing as of the date of this Agreement or pursuant to outstanding options, warrants or rights) or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective ~~materially adverse~~ change, in or affecting the ~~condition (financial or otherwise)~~general affairs, management, ~~earnings, properties, business affairs or business prospects~~financial position, stockholders’ ~~equity, net worth~~ equity or results of operations of the Company ~~or any of~~ and its subsidiaries, ~~taken~~ otherwise than as ~~a whole~~set forth or contemplated in the Pricing Memorandum, ~~except~~ the effect of which, in ~~each~~ any such case as described in clause (i) or ~~contemplated by~~ (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the ~~Final Memorandum (exclusive of any amendment~~ offering or ~~supplement thereto). (e) Subsequent to~~ the ~~execution and~~ delivery of the Securities on the terms and in the manner contemplated in this Agreement and ~~prior to~~ in each of the ~~Closing Date, there~~ Pricing Disclosure Package and the Offering Memorandum; e. On or after the Applicable Time (i) no downgrading shall ~~not~~ have occurred ~~any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change,~~ in the rating accorded ~~any of~~ the Company’s debt securities by any “nationally recognized statistical rating organization”, as ~~such~~ that term is defined ~~for purposes of Rule 436(g)(2~~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 occurred any of the following: (fi) ~~The Indenture~~ a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq Global Select Market; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Offering Memorandum; g. A number of shares of Common Stock equal to the Maximum Number of Underlying Securities shall have been ~~executed~~ duly listed, subject to notice of issuance, on the NYSE; h. The Company shall have obtained and delivered ~~by all~~ to the ~~parties thereto.~~Initial Purchasers executed copies of an agreement from each of the Company’s directors and executive officers listed in Schedule IV hereto, substantially to the effect set forth in Exhibit A hereof; ~~(g) On the Closing Date, the~~ i. The Initial Purchasers shall have received an executed original copy of the ~~Registration Rights Agreement executed~~ Indenture; j. The Securities shall be eligible for clearance and settlement through the facilities of DTC; k. The Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsection (e) of this Section and as to such ~~agreement shall be in full force and effect at all times from and after the Closing Date.~~other matters as you may reasonably request; and ~~(h) On or before the Closing Date, the Initial Purchasers and counsel for the~~ l. The Initial Purchasers shall have received ~~such further certificates, documents or other information as they may have reasonably requested from~~ (i) a certificate of the Chief Financial Officer of the Company~~. All opinions~~, ~~certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are~~ in a form that is reasonably satisfactory ~~in all material respects~~ to the Initial ~~Purchasers~~ Purchasers, dated the date hereof, with respect to certain financial information contained in the Pricing Disclosure Package and ~~counsel for~~ (ii) a “bring-down” certificate of the Chief Financial Officer of the Company, in a form that is reasonably satisfactory to the Initial Purchasers~~. The Company shall furnish~~ , dated the Closing Date, with respect to certain financial information contained in the Offering Memorandum and to the ~~Initial Purchasers~~ effect that such ~~conformed copies of~~ officer reaffirms the statements made in the initial certificate furnished pursuant to subclause (i) with respect to such ~~opinions, certificates, letters, and documents~~ financial information contained in ~~such quantities as~~ the ~~Initial Purchasers shall reasonably request~~Pricing Disclosure Package.

Appears in 1 contract

Sources: Purchase Agreement (Workiva Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ ------------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the ~~Notes shall,~~ Securities shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the ~~representations~~ rep- resentations and warranties of made herein on the ~~Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements~~ part of the Company~~’s officers made pursuant to the provisions hereof~~, to the performance by the Company of its ~~covenants and agreements~~ obligations to be performed hereunder prior to the Closing Date, and to the following ~~additional~~ conditions: ~~(a) On~~ a. The Company shall have furnished to the ~~Closing Date~~Initial Purchaser the opinion of _________________, the ~~Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for~~ Counsel of the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company ~~and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been~~ is a corporation duly organized and ~~are~~ validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions of incorporation~~ Missouri and ~~are~~ has due corporate power and authority to own its properties and conduct its business as described in the Offering Memorandum Prospectus, and is duly qualified to ~~transact business as foreign corporations and~~ conduct in __________ the businesses in which it is engaged in those States, which are the only States in ~~good standing under the laws of all other jurisdictions where such counsel has been advised that the failure~~ which it is required to be so ~~qualified would amount to a material liability or disability to~~ qualified; (ii) the Company ~~and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have~~ has full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and execute the Indenture and to ~~carry out all~~ issue the ~~terms~~ Securities thereunder, and ~~provisions hereof~~ the Indenture has been duly authorized, executed and ~~thereof and of the Notes to be carried out~~ delivered by ~~it; all of the issued and outstanding shares of capital stock of each of~~ the Company~~’s significant subsidiaries~~, ~~except as otherwise set forth in the Final Memorandum, are owned beneficially~~ and constitutes a valid and legally binding instrument by the Company ~~free and clear of any perfected security interests or, to~~ enforceable against the ~~best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments~~Company in accordance with its terms; (iii) the ~~statements set forth under~~ Securities and the ~~heading “Description of Notes” in~~ Indenture have been duly authorized, executed and issued by the ~~Final Memorandum~~Company and, ~~insofar as such statements purport to summarize certain provisions~~ assuming due authentication thereof by the Trustee and upon payment for and delivery of the ~~Notes~~ Securities in accordance with the terms of this Agreement, they will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the ~~execution~~ Company has full power and ~~delivery of~~ authority to execute this Agreement ~~have been duly authorized by all necessary corporate action of the Company~~ and ~~the~~ this Agreement has been duly authorized, executed and delivered by the Company; (v) the execution and delivery of the ~~Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee)~~Indenture, the ~~Indenture will be a legal~~Securities and this Agreement, ~~valid~~ and ~~binding agreement~~ the fulfillment of the ~~Company, enforceable against the Company in accordance with its~~ terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on thereof and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized hereof by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach ~~or violation~~ of any of the terms ~~and~~ or provisions of, or constitute a default ~~under~~under any provision of, the Company's articles of incorporation or by-laws or any indenture, mortgage, deed of ~~trust, lease~~ trust or other ~~material~~ agreement or instrument, ~~known to~~ of which such ~~counsel~~counsel has knowledge, to which the Company ~~or any of its significant subsidiaries~~ is now a party ~~or by which~~ or, to the ~~Company or~~ best of such counsel's knowledge, any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or ~~other~~ governmental ~~authority~~ agency or ~~any arbitrator known to such counsel and applicable to~~ body having jurisdiction over the Company or any of its ~~significant subsidiaries~~activities or properties; (xvi) the provisions of the Securities and the Indenture conform in all material respects as to legal matters to the statements concerning them contained in the Offering Memorandum under "______________" and "________________________________________"; (vii) the franchises, permits and licenses under which the Company operates in the States of Missouri, ________ and _____are adequate to permit the Company to engage in the businesses which it presently conducts in those States and do not contain any unduly burdensome provisions; in those municipalities where the Company operates without franchises or where expired franchises have not been renewed, the lack of such franchises does not materially affect the Company's operations in such municipalities and no actions or proceedings are pending or, to such counsel's knowledge, threatened by such municipalities which would materially affect the Company's operations; (viii) it is not ~~an “investment company” and~~necessary in connection with the offer, ~~after giving effect~~ sale and delivery of the Securities to you and (assuming such offer, sale and delivery are made in compliance with the provisions of the Purchase Agreement and in the manner contemplated by the Offering Memorandum) to each subsequent purchaser to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of ~~the Notes and the application of the proceeds therefrom, will not be an “investment company”~~1939, as ~~such term is defined in the 1940 Act~~amended; and (xiix) ~~such counsel does not know of any legal or governmental proceedings pending or threatened to which~~ each document filed by the Company or any of its subsidiaries ~~is a party or to which~~ with the ~~property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus~~ Securities and Exchange Commission ("Commission") pursuant to the ~~Act that are not described~~ Exchange Act, and incorporated by reference in the ~~Final~~ Offering Memorandum ~~or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant~~ (except as to the ~~Act that are~~ financial statements and schedules and other financial and statistical data contained therein, as to which they need not ~~described or incorporated in~~ express any belief), at the ~~Final Memorandum. (xii) commencing~~ time it was filed with the ~~Company’s taxable year ended December 31~~Commission, ~~1998, the Company was organized and has operated~~ complied as to form in ~~conformity~~ all material respects with the ~~requirements for qualification as a real estate investment trust (“REIT”) under the Code,~~ Exchange Act and the ~~Company’s present~~ applicable instructions, rules and ~~proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act~~ regulations of the ~~Notes is required~~ Commission thereunder. Such counsel's opinion set forth in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, paragraphs (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) above may be subject to the ~~due~~ qualifications that the enforceability of the Company's obligations under the Indenture and the Securities may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditor's rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing. Such opinion shall also state that such counsel has no knowledge of any litigation, pending or threatened, which challenges the validity of the Securities, the Indenture, or this Agreement, or which seeks to enjoin the performance of the Company's obligations thereunder or which might have a material adverse effect on the business, properties or financial condition of the Company except as disclosed in or contemplated by the ~~Initial Purchasers of the agreements set forth in Section 8 hereof~~Offering Memorandum. In rendering ~~any~~ such opinion, such counsel may ~~rely,~~ rely as to factual matters upon certificates or written statements from others or other appropriate representatives of ~~fact~~the Company or upon certificates of public officials. In such opinion, such counsel may state that while such counsel has examined the Offering Memorandum, such counsel necessarily assumes the correctness and completeness of the statements made and information included therein and takes no responsibility therefor, except insofar as such statements relate to such counsel and as set forth in paragraph (vii) above. Such counsel's opinion may further state that it is addressed to the Initial Purchasers and is rendered solely for their benefit and may not be relied upon in any manner by any other person (other than _______________________ to the extent ~~such counsel deems proper, on certificates of responsible officers~~ stated in its opinion to the Initial Purchasers as of the ~~Company and public officials and~~Closing Date) without such counsel's prior written consent. b. The Initial Purchasers shall have received from ____________, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, ~~upon the~~ such opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasersopinions, dated the Closing Date, with respect to ~~certain legal matters relating to this Agreement~~ the issuance and ~~such~~ sale of the Securities, the Indenture, the Offering Memorandum (together with any supplement thereto) and other related matters as the Initial ~~Purchasers~~ Purchaser may reasonably require~~. In rendering such opinion~~, ~~▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP~~ and the Company shall have ~~received and may rely upon~~ furnished to such ~~certificates and other~~ counsel such documents ~~and information~~ as ~~it may reasonably~~ they request for the purpose of enabling them to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) c. The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers ~~at the Closing~~ a certificate of ~~its~~ the Company, signed by the Chairman of the ~~Board~~Board or the President and the principal financial or accounting officer of the Company, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to~~ dated the ~~Initial Purchasers~~ Closing Date, to the effect that the signers of such certificate have carefully examined the Offering Memorandum, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~as if made~~ in all material respects on and as of the Closing ~~Date;~~ Date with the same effect as if made on the Closing Date and the Company has ~~performed~~ complied with all ~~covenants and~~ the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) ~~subsequent~~ since the date of the most recent financial statements included in the Offering Memorandum (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any supplement thereto). d. At the Closing Date, ________________, independent accountants shall have furnished to the ~~respective~~ Initial Purchasers a letter or letters, dated as of the Closing Date, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants' " comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Offering Memorandum. e. Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the ~~Final Memorandum~~ Offering Memorandum, there shall not have been (~~exclusive~~ i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 8 or (ii) any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancechange, or ~~from~~ any ~~labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or~~ development involving a prospective ~~materially adverse~~ change, in or affecting the ~~condition (financial~~ business or ~~otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ properties of the Company the effect of which is, in the judgment of the Initial Purchasers, so material and adverse as to make it impractical or ~~any~~ inadvisable to proceed with the offering or delivery of ~~its subsidiaries, taken~~ the Securities as ~~a whole, except in each case as described in or~~ contemplated by the ~~Final Memorandum (exclusive of any amendment or supplement thereto)~~Offering Memorandum. ~~(e) Subsequent to the execution and delivery of this Agreement and prior~~ f. Prior to the Closing Date, ~~there~~ the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request. If any of the conditions specified in this Section 8 shall not have ~~occurred any downgrading, nor shall any notice have~~ been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers and counsel for the Initial Purchasers~~. The Company shall furnish to~~ , this Agreement and all obligations of the Initial Purchasers ~~such conformed copies~~ hereunder may be canceled at, or at any time prior to, the Closing Date by the Initial Purchasers. Notice of such ~~opinions, certificates, letters, and documents~~ cancellation shall be given to the Company in ~~such quantities as the Initial Purchasers shall reasonably request~~writing or by telephone or electronic transmittal confirmed in writing.

Appears in 1 contract

Sources: Purchase Agreement (Ameren Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on the Closing Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements hereunder~~ obligations hereunder, and to each of the following additional terms and conditions: (a) ~~On the Closing Date, the~~ The Initial Purchasers shall not have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for~~ discovered and disclosed to the ~~Company, dated~~ Company on or prior to the Closing ~~Date, to~~ Date that the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date Offering Memorandum or ~~the date of such opinion, included~~ any amendment or ~~includes~~ supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material ~~fact or omitted~~ or omits to state any fact which, in the opinion of such counsel, is material ~~fact~~ and is required to be stated therein or is necessary ~~in order~~ to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not misleading. (iib) All corporate proceedings and other legal matters incident to the ~~Company~~ authorization, form and ~~each~~ validity of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ this Agreement, the ~~Exchange Act) have been duly organized~~ Unit Agreement, the Indenture, the Warrant Agreement, the Registration Rights Agreement, the Escrow Agreement, the Offering Memorandum or any amendment or supplement thereto, and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other ~~jurisdictions where such counsel has been advised that~~ legal matters relating to this Agreement, the ~~failure to be so qualified would amount to a material liability or disability to~~ Unit Agreement, the ~~Company and its subsidiaries~~Indenture, ~~taken as a whole;~~ the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Warrant Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiariesEscrow Agreement, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the ~~Indenture, provide a fair summary of such provisions;~~ transactions contemplated hereby and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings thereby shall be reasonably satisfactory in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel ~~for~~ to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon ~~the opinion of~~ such matters. (c) ▇▇▇▇▇▇~~▇ LLP. An opinion of~~ , ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have ~~received and may rely upon such certificates and other documents and information as it may reasonably request~~ furnished to ~~pass upon such matters. (c) The~~ the Initial Purchasers ~~shall have received from PricewaterhouseCoopers LLP a letter or letters dated~~its written opinion, ~~respectively~~as U.S. counsel to the Company, addressed to the ~~date hereof~~ Initial Purchasers and dated the Closing Date, in form and substance satisfactory to ~~counsel for~~ the Initial Purchasers~~. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board~~, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers~~ to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the ~~representations and warranties~~ laws of the ~~Company~~ State of Delaware, is duly qualified to do business and is in ~~this Agreement are true~~ good standing as a foreign corporation in each U.S. jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, and ~~correct as if made on~~ has all power and ~~as of~~ authority necessary to own or hold its properties and conduct the ~~Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and~~businesses in which it is engaged; (ii) ~~subsequent~~ The Company has an authorized capitalization as set forth in the Offering Memorandum and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable and conform to the ~~respective dates as of which information is given~~ description thereof contained in the ~~Final Memorandum~~ Offering Memorandum; (~~exclusive~~ iii) To the best of ~~any amendment~~ such counsel's knowledge there are no legal or ~~supplement thereto), neither~~ governmental proceedings pending to which the Company ~~nor~~ or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, might have a material adverse effect on the financial position, stockholders' equity, results of operations, business or prospects of the Company and its subsidiaries; and, to the best of such counsel's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (iv) The Company has ~~sustained~~ full right, power and authority to execute and deliver each of the Operative Documents and to perform its obligations thereunder; and all corporate action required to be taken for the due and proper authorization, execution and delivery of each of the Operative Documents and the consummation of the transactions contemplated thereby has been duly and validly taken; (v) Each of the Operative Documents is in proper legal form for the enforcement thereof against the Company without further action on the part of the Initial Purchasers, the holders of the Securities, the Unit Agent, the Trustee or the Warrant Agent; (vi) This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Initial Purchasers, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing, and except, with respect to the rights of indemnification and contribution thereunder, where enforcement thereof may be limited by public policy; (vii) The Unit Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery of the Unit Agreement by the Unit Agent, the Warrant Agent and the Trustee, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (viii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery of the Indenture by the Trustee, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (ix) The Indenture conforms in all material respects with the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture eligible to be qualified thereunder; (x) The Warrant Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery of the Warrant Agreement by the Warrant Agent, constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (xi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery of the Registration Rights Agreement by the Initial Purchasers, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing, and except, with respect to the rights of indemnification and contribution thereunder, where enforcement thereof may be limited by public policy; (xii) The Escrow Agreement has been duly authorized, executed and delivered by the Company and, assuming due execution and delivery of the Escrow Agreement by the Escrow Agent and the Trustee, constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (xiii) The certificates used to evidence the Units, the Notes and the Warrants are in due and proper form and comply with all applicable statutory requirements of U.S. federal, Delaware and New York law; (xiv) The Units have been duly authorized, executed and delivered by the Company and, assuming due authentication thereof by the Unit Agent, the Warrant Agent and the Trustee, upon payment and delivery in accordance with this Agreement and the Unit Agreement, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Unit Agreement, the Indenture and the Warrant Agreement and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (xv) The Notes have been duly authorized, executed and delivered by the Company and, assuming due authentication thereof by the Trustee, upon payment and delivery in accordance with this Agreement and the Indenture, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent, conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (xvi) The Warrants have been duly authorized, executed and delivered by the Company and, assuming due execution thereof by the Warrant Agent in accordance with the provisions of the Warrant Agreement, upon payment and delivery in accordance with this Agreement and the Warrant Agreement, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company, entitled to the benefits of the Warrant Agreement and enforceable against the Company in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (xvii) The Warrant Shares issuable upon exercise of the Warrants have been duly authorized and, when issued in accordance with the terms and conditions contained in the Warrant Agreement upon exercise of the Warrants, will be validly issued in accordance with the laws of the State of Delaware and the provisions of the Certificate of Incorporation and By-laws of the Company and will be fully paid and nonassessable and holders of such Warrant Shares will have no other liability for any debt or other obligation of the Company towards third parties in their capacity as holders of such Warrant Shares; such Warrant Shares, when issued, will not be subject to any preemptive or similar rights and will be free and clear of all liens, encumbrances, equities and claims or restrictions on transferability; (xviii) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Common Stock or pursuant to the Company's Certificate of Incorporation or By-Laws or any agreement or other instrument known to such counsel; (xix) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities to be registered pursuant to the Registration Rights Agreement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act. (xx) The execution, delivery and performance of the Operative Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby, do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any material ~~loss or interference with their respective businesses or properties from fire~~indenture, ~~flood~~mortgage, ~~hurricane~~deed of trust, ~~accident~~ loan agreement or other ~~calamity, whether~~ material agreement or ~~not covered by insurance, or from any labor dispute~~ instrument to which the Company or any ~~legal~~ of its subsidiaries is subject, nor will such actions result in any violation of (A) the provisions of the Certificate of Incorporation or ~~governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management~~ By-laws or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations equivalent constitutive documents of the Company or any of its subsidiaries, ~~taken~~ (B) any existing applicable law, rule or regulation of any court or governmental agency or body of the United States or the State of New York or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law (other than state securities or Blue Sky laws as ~~a whole~~to which we have not been requested to express any opinion) or (C) any order, ~~except in each case as described in~~ known to such counsel, of any government, governmental instrumentality or court of the United States or the State of New York having jurisdiction over the Company or any of its properties or assets or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law; (xxi) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body of the United States or the State of New York or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law is required for the consummation of the transactions contemplated by the ~~Final Memorandum (exclusive of any amendment~~ Operative Documents in connection with the issuance or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction sale of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed Units by the Company and the deposit by the Company of the Pledged Securities in the Escrow Account (assuming compliance with the terms of the Operative Documents by the parties thereto), except, with respect to the transactions contemplated by the Registration Rights Agreement, as may be required under the Securities Act, the Trust Indenture Act and the rules and regulations of the Commission thereunder, and otherwise except as may be required by state or foreign securities or "Blue Sky" laws (as to which such ~~agreement shall be in full force and effect at all times from and after the Closing Date.~~counsel expresses no opinion); (hxxii) ~~On or before~~ The descriptions in the ~~Closing Date~~Offering Memorandum of statutes, ~~the Initial Purchasers~~ legal and ~~counsel for the Initial Purchasers shall have received such further certificates,~~ governmental proceedings and contracts and other documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are ~~satisfactory~~ accurate in all material respects to the ~~Initial Purchasers~~ extent the foregoing concern the federal laws of the United States, the laws of the State of New York and ~~counsel for~~ the ~~Initial Purchasers.~~ Delaware General Corporation Law; the statements set forth in the Offering Memorandum under the captions "Description of the Units," "Description of the Notes" and "Description of the Warrants" insofar as such statements purport to constitute a summary of the terms of the Unit Agreement, the Indenture, the Warrant Agreement, the Registration Rights Agreement and the Escrow Agreement fairly summarize such terms, agreements and other documents in all material respects; and the statements set forth in the Offering Memorandum under the caption "Certain United States Federal Income Tax Consequences" insofar as they purport to constitute summaries of matters of U.S. federal income tax law and legal conclusions with respect thereto constitute accurate summaries of the matters described therein all material respects; (xxiii) The Company ~~shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.~~i

Appears in 1 contract

Sources: Purchase Agreement (Cybernet Internet Services International Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the ~~Notes~~ Units shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from ▇~~the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇ ~~Chance US LLP~~▇. ▇▇▇▇▇▇, Vice President, General Counsel and Corporate Secretary of the Company, in form and substance reasonably satisfactory to counsel for the ~~Company~~Initial Purchasers, ~~dated the Closing Date,~~ substantially to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and ~~each of its “significant subsidiaries” (~~the Guarantor is duly qualified to do business as ~~defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations~~ a foreign corporation in good standing ~~under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are~~ in ~~good standing under the laws of~~ all ~~other~~ jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such ~~counsel has been advised that~~ qualification, except where the failure to be so qualified would ~~amount~~ not, individually or in the aggregate, reasonably be expected to have a ~~material liability or disability to~~ Material Adverse Effect. (ii) The Company has the ~~Company~~ authorized, issued and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described outstanding capitalization set forth in the Final ~~Memorandum,~~ Memorandum under the heading "Capitalization" and ~~the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and~~ "Description of ~~the Notes to be carried out by it~~Capital Stock"; all of the ~~issued and~~ outstanding shares of capital stock of ~~each~~ the Company have been duly authorized and validly issued, are fully paid and nonassessable and to the knowledge of such counsel were not issued in violation of any preemptive or similar rights; all of the ~~Company’s significant subsidiaries~~outstanding shares of capital stock of the Subsidiaries are owned, ~~except as otherwise set forth in the Final Memorandum~~directly or indirectly, ~~are owned beneficially~~ by the ~~Company~~ Company, free and clear of ~~any~~ all perfected security interests orand, to the ~~best~~ knowledge of such counsel, ~~any~~ free and clear of all other ~~security interests,~~ liens, encumbrances, equities and claims or ~~claims~~restrictions on transferability (other than those imposed by the Act, ~~except for pledges~~ the securities or "Blue Sky" laws of ~~subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize~~ certain ~~provisions of the Notes~~ jurisdictions and the ~~Indenture, provide a fair summary of such provisions~~Credit Agreement) or voting; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the ~~Registration Rights Agreement and~~ Warrants, the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), Warrant Shares will be ~~the legal~~duly authorized, ~~valid~~ validly issued, fully paid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power nonassessable and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the ~~Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions~~ knowledge of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be ~~an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of~~ subject to any ~~legal~~ preemptive or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumsimilar rights. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (Jostens Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of ------------------------------------------------- each of the Initial Purchasers to purchase ~~and pay for~~ the Notes ~~shall, be subject~~hereunder is subject to the fulfillment, in the Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the ~~Initial Purchasers~~ use of the Offering Memorandum or any amendment or supplement thereto, nor any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~been issued, ~~counsel~~ and no proceedings for ~~the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe~~ that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) purpose shall have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to commenced or shall be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests pending or, to the ~~best~~ knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions either of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company Issuers or any ~~of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound~~Guarantor, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) contemplated. No ~~registration under the Act of the Notes is required in connection with~~ order suspending the sale of the Notes in any jurisdiction shall have been issued, and no proceedings for that purpose shall have been commenced or shall be pending or, to the ~~Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale~~ knowledge of either of the ~~Notes by the Initial Purchasers in accordance with Section 8 of this Agreement~~Issuers or any Guarantor, ~~and prior~~ shall be contemplated. (b) Subsequent to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming date hereof (i) there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (~~A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act~~ financial or otherwise), business, prospects, liabilities (~~“QIBs”)~~ contingent or ~~(B) that the offer~~ otherwise), properties, assets, net worth, solvency or ~~sale~~ results of operations of either of the ~~Notes is made in an offshore transaction as defined in Regulation S~~Issuers or any of the Guarantors, and (ii) the ~~accuracy~~ conduct of the ~~Initial Purchasers’ representations in Section 8~~ business and ~~those~~ operations of the ~~Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers~~ Issuers and the ~~initial resale thereof and~~ Guarantors has not been interfered with by strike, fire, flood, hurricane, accident or other calamity (~~iii~~whether or not insured) and, except as otherwise stated in the ~~due performance by~~ Offering Memorandum, the ~~Initial Purchasers~~ properties of each of the ~~agreements set forth in Section 8 hereof. In rendering~~ Issuers and the Guarantors have not sustained any loss or damage (whether or not insured) as a result of any such ~~opinion~~occurrence, except any such ~~counsel may rely~~interference, as loss or damage which could not, singly or in the aggregate, reasonably be expected to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Datehave a Material Adverse Effect. (bc) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from ▇▇▇▇▇▇ ▇~~of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the ~~Initial Purchasers~~Issuers and the Guarantors, dated the Closing ~~Date, with respect~~ Date and addressed to ~~certain legal matters relating to this Agreement and such other related matters as~~ the Initial ~~Purchasers may~~ Purchasers, in form and substance reasonably ~~require. In rendering such opinion,~~ satisfactory to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, ~~respectively~~P.C., ~~the date hereof and the Closing Date, in form and substance satisfactory to~~ counsel for the Initial Purchasers~~. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board~~, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers~~ to the effect that: (i) Each Issuer is a corporation duly incorporated and validly existing in good standing under the ~~representations and warranties~~ laws of the ~~Company~~ State of Delaware 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 as a foreign corporation in each jurisdiction where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or to be in good standing could not, singly or in the aggregate with all other such failures, reasonably be expected to have a Material Adverse Effect; (ii) Each Guarantor is an entity duly incorporated and validly existing in good standing under the laws of its jurisdiction of incorporation or organization with full corporate, partnership or other applicable 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 as a foreign corporation, partnership or other entity in each jurisdiction where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or to be in good standing could not, singly or in the aggregate with all other such failures, reasonably be expected to have a Material Adverse Effect; (iii) Each Issuer has corporate power and authority to enter into this Agreement and the other Transaction Documents and to issue, sell and deliver the Notes to be sold by it to the Initial Purchasers as provided herein, and this Agreement and each of the other Transaction Documents (other than the Notes) have been duly authorized, executed and delivered by each Issuer and each of the Transaction Documents (other than this Agreement) are ~~true~~ valid, legal and ~~correct as if made on~~ binding agreements of each Issuer, enforceable against each Issuer in accordance with their respective terms; (iv) Each Guarantor has corporate, partnership or other power and authority to enter into this Agreement and the other Transaction Documents, and this Agreement and each of the other applicable Transaction Documents have been duly authorized, executed and delivered by each Guarantor and each of the Transaction Documents (other than this Agreement) are valid, legal and binding agreements of each Guarantor, enforceable against each Guarantor in accordance with their respective terms; (v) The Notes have been duly and validly authorized by each Obligor, and, when executed by the Obligors, authenticated by the Trustee in accordance with the Indenture delivered to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of each Obligor, entitled to the benefits of the Indenture; (vi) (x) The offer, sale or delivery of the Notes as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and ~~there has not been any materially adverse change~~ (~~including~~y) the execution, ~~without limitation, a change in management~~ delivery or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated performance by the ~~Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery~~ Issuers of this Agreement and ~~prior~~ the other Transaction Documents, and (z) compliance by the Issuers with the provisions hereof or thereof and consummation by the Issuers of the transactions contemplated hereby or thereby, do not and will not conflict with and do not and will not constitute a breach of, or a default under (including any event which, with notice or lapse of time or both, would be a breach of or a default under), (a) the certificate or articles of incorporation or partnership or membership agreement or bylaws or other organizational documents of the Issuers or any of the Guarantors as in effect on the Closing Date or (b) any Agreement or Instrument known to such counsel as in effect on the Closing Date, ~~there shall not~~ except, with respect to this clause (b) any such conflict, breach or default that could not, singly or in the aggregate, with all such other conflicts, breaches and defaults, reasonably be expected to have ~~occurred~~ a Material Adverse Effect, and other than as described in the Offering Memorandum or the Incorporated Documents, and, based solely on facts known to such counsel, no such action will result in any ~~downgrading, nor shall any notice have been given~~ violation of any ~~intended~~ Law or ~~potential downgrading or of any review for a possible change that does not indicate the direction~~ Legal Requirement in effect as of the ~~possible change~~Closing Date which in such counsel's experience is customarily applicable to transactions of the type contemplated by the Transaction Documents (assuming for the purposes of this paragraph compliance with all applicable state securities and Blue Sky laws and, in the ~~rating accorded any~~ case of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights ~~Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date~~Agreements, the ~~Initial Purchasers~~ Act, the Exchange Act and ~~counsel for~~ the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.1939 Act);

Appears in 1 contract

Sources: Purchase Agreement (Hollywood Park Inc/New/)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Representative on behalf of the several Initial Purchasers to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject~~subject to the accuracy, in ~~the Initial Purchasers’ sole discretion~~all material respects, ~~to the accuracy~~ of the representations and warranties of the Company ~~contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~herein, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~performance, ~~to the performance~~ in all material respects, by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Commercial Loans shall have been delivered to the Trustee pursuant to the Sale and Servicing Agreement. (b) The Initial Purchasers shall have received a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company~~certificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that: , to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has ~~no reason~~ complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (~~other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion~~A) the ~~Final Memorandum~~Time of Sale Information, as of ~~its date or~~ the ~~date~~ Time of ~~such opinion~~Sale, ~~included or includes~~ contains any untrue statement of a material fact or ~~omitted~~ omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (B) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or any Additional Offering Document contained or contains an untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) The Class A-1 Notes and the ~~Company and~~ Class A-2 Notes shall each ~~of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ have been ~~duly organized~~ rated no less than “Aaa” by ▇▇▇▇▇’▇, “AAA” by S&P, and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than “Aa2” by ▇▇▇▇▇’▇, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by ▇▇▇▇▇’▇, “A” by S&P and “A” by Fitch, the Class D Notes shall have been rated no less than “Baa2” by ▇▇▇▇▇’▇, “BBB” by S&P and “BBB” by Fitch and the Class E Notes shall have been rated no less than “Baa3” by ▇▇▇▇▇’▇, “BBB-” by S&P and “BBB-” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the ~~Company pursuant~~ date of delivery thereof, in form and substance satisfactory to ~~this Agreement,~~ the ~~compliance by the Company with the other provisions of this Agreement and the consummation~~ Representative on behalf of the ~~other transactions herein contemplated do not (x) require the consent~~Initial Purchasers, ~~approval, authorization, registration or qualification of or~~ with ~~any governmental authority, except such as have been obtained or made (~~respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) ~~commencing with~~ Initial Purchasers shall have received an opinion, dated the ~~Company’s taxable year ended December 31~~Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of ~~operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes~~ in-house counsel to the ~~Initial Purchasers as contemplated by this Agreement~~ Trustee, in form and ~~the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior~~ substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers~~’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the~~ . (f) The Initial Purchasers ~~and the initial resale thereof and (iii) the due performance by the Initial Purchasers~~ shall have received legal opinions of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇Winston & ▇▇▇▇▇▇ LLP~~. An opinion~~ , counsel to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of ~~▇▇▇▇▇▇▇ LLP shall be delivered to~~ the Initial Purchasers and ~~counsel for~~ (ii) with respect to certain “true sale” and “non–consolidation” issues in form and substance satisfactory to the ~~Initial Purchasers covering matters reasonably requested by~~ Representative on behalf of the Initial Purchasers~~. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date~~. (bg) The Initial Purchasers shall have received ~~a legal~~ an opinion ~~from~~ of ▇~~▇▇▇▇▇~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel ~~for~~ to the ~~Initial Purchasers, dated~~ Company and the ~~Closing Date~~Trust Depositor, with respect to certain ~~legal matters relating~~ “perfection issues” in form and substance satisfactory to ~~this Agreement and such other related matters as~~ the Representative on behalf of the Initial Purchasers. (h) The Initial Purchasers ~~may reasonably require. In rendering such opinion,~~ shall have received opinions of ▇▇▇▇▇▇ ▇▇▇▇▇~~▇ & ▇▇▇▇~~▇▇▇ ~~LLP shall have received~~ LLP, counsel to the Owner Trustee and ~~may rely upon such certificates~~ the Trust, with respect to certain trust matters and ~~other documents~~ with respect to certain “perfection issues,” in each case in form and ~~information as it may reasonably request~~ substance satisfactory to ~~pass upon such matters~~the Representative on behalf of the Initial Purchasers. (ci) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and its counsel ~~for the Initial Purchasers. The Company shall furnish to the Initial Purchasers~~ such ~~conformed copies of such opinions~~further information, ~~certificates, letters,~~ certificates and documents ~~in such quantities~~ as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel. (l) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Sources: Purchase Agreement (NewStar Financial, Inc.)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers to purchase ~~and pay for~~ the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements Firm Debentures hereunder ~~and~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Debentures in any jurisdiction designated by the Initial Purchasers shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~been issued and no proceedings for that purpose shall have been commenced or shall be pending or, ~~counsel for~~ to the knowledge of the Company, ~~dated the Closing Date,~~ shall be contemplated. (b) Subsequent to the ~~effect that:~~ effective date of this Agreement, there shall not have occurred (i) ~~such counsel has no reason to believe that (other than~~ any change, or any development involving a prospective change, in or affecting the business, financial ~~statements and other financial information contained therein, as to which such counsel need express no opinion)~~ condition or results of operations of the ~~Final~~ Company or the Subsidiaries not contemplated by the Offering Memorandum, as which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Debentures, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its ~~date~~ counsel or the ~~date~~ Initial Purchasers and their counsel, requires the making of ~~such opinion, included~~ any addition to or ~~includes any untrue statement of~~ change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or ~~omitted or omits to state any material fact~~ necessary in order to make the statements ~~therein~~therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy opinion of the Initial Purchasers~~’ representations in Section 8 and those of~~ , materially adversely affect the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel market for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateDebentures. (bc) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from~~ of ▇~~▇▇▇▇▇~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~, L.L.P., counsel for the ~~Initial Purchasers~~Company, dated the Closing ~~Date, with respect~~ Date and addressed to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers~~. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board~~, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers~~ to the effect that: (i) The Incorporated Documents (except for the ~~representations~~ financial statements and ~~warranties~~ the notes thereto and the schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; andExchange Act; (ii) ~~subsequent~~ The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to ~~the respective dates~~ own, lease and operate its properties and to conduct its business as ~~of which information is given~~ described in the ~~Final~~ Offering Memorandum (~~exclusive of~~ and any amendment or supplement thereto), ~~neither~~ and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify does not have a Material Adverse Effect; (iii) All of the Company's Subsidiaries, including the Corporate Subsidiaries, LLC Subsidiaries and Partnership Subsidiaries, that would be required to be listed as an exhibit pursuant to Item 601(b)(21) of Regulation S-K are referred to herein individually as a "Material Subsidiary" and collectively as the "Material Subsidiaries." Each Material Subsidiary that is a corporation has been duly organized and is validly existing in good standing under the laws of the jurisdiction of its organization; each Material Subsidiary that is a limited liability company is duly organized and validly existing under the laws in the jurisdiction of its organization; and each Material Subsidiary that is a partnership has been duly organized and is an existing partnership under the laws of the jurisdiction of its organization. Each Material Subsidiary has full corporate, limited liability company, or partnership, as the case may be, power and authority to own, lease, and operate its properties and to conduct its business as described in the Offering Memorandum (and any amendment or supplement thereto); all the outstanding shares of capital stock of each of the Material Subsidiaries that is a corporation have been duly authorized and validly issued, are fully paid and nonassessable, and are owned by the Company ~~nor~~ directly, or indirectly through one of the other Subsidiaries, free and clear of any perfected security interest, or, to the best knowledge of ~~its subsidiaries has sustained~~ such counsel after reasonable inquiry, any ~~material loss or interference with their respective businesses or properties from fire~~other security interest, ~~flood~~lien, ~~hurricane~~adverse claim, ~~accident~~ equity or other ~~calamity~~encumbrance, ~~whether~~ except as described in the Offering Memorandum or ~~not covered~~ on Schedule II hereto; all the outstanding membership interests in the Material Subsidiaries that are limited liability companies have been duly authorized and validly issued and such interests are owned by ~~insurance~~the Company directly, or ~~from~~ indirectly through one of the other Subsidiaries, free and clear of any ~~labor dispute~~ lien, adverse claim, security interest, equity or other encumbrance, except as disclosed in the Offering Memorandum or on Schedule II hereto; and all the outstanding partnership interests in the Material Subsidiaries are owned by the Company directly, or indirectly through one of the other Subsidiaries free and clear of any ~~legal~~ lien, adverse claim, security interest, equity or ~~governmental proceeding~~other encumbrances, except as disclosed in the Offering Memorandum or on Schedule II hereto. (iv) The Company has all necessary corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to issue, sell and deliver the Debentures to be sold by it to the Initial Purchasers as provided herein, and ~~there~~ this Agreement and the Registration Rights Agreement have each been duly authorized, executed and delivered by the Company and each constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforcement of rights to indemnity and contribution under each agreement may be limited by Federal or state securities laws or principles of public policy and except to the extent that enforceability of each agreement is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity; (v) The Indenture has ~~not~~ been ~~any materially adverse change~~ duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, is a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforcement of rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or principles of public policy and except to the extent that enforceability thereof is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness) whether such principles are considered in a ~~change~~ proceeding at law or in ~~management~~ equity; (vi) The Debentures have been duly and validly authorized by the Company and when executed by the Company in accordance with the Indenture and, assuming due authentication of the Debentures by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, except to the extent that enforceability thereof is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or ~~control~~other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness), whether such principles are considered in a proceeding at law or ~~development involving a prospective materially adverse change~~in equity; (vii) The shares of Common Stock issuable upon conversion of the Debentures have been duly authorized and reserved for issuance and, when issued and delivered upon conversion of the Debentures, in accordance with the ~~condition~~ terms thereof, will be validly issued, fully paid and nonassessable and will be free of any preemptive, or to the best knowledge of such counsel after reasonable inquiry, similar rights ; (~~financial~~ viii) The authorized and outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Offering Memorandum; and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Offering Memorandum under the caption "Description of Capital Stock"; (ix) All the shares of capital stock of the Company outstanding prior to the issuance of the Debentures to be issued and sold by the Company hereunder have been duly authorized and validly issued and are fully paid and nonassessable; (x) No consent, approval, authorization or ~~otherwise)~~other order of, ~~management~~or registration or filing with, ~~earnings~~any court, ~~properties~~regulatory body, ~~business affairs~~ administrative agency or ~~business prospects~~other governmental body, ~~stockholders’ equity~~agency, ~~net worth~~ or ~~results~~ official is required on the part of ~~operations~~ the Company (except as have been obtained under the Exchange Act, or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Debentures, or such as may be required to qualify the Indenture under the 1939 Act, and such as may be required in connection with the performance by the Company of its obligations under the Registration Rights Agreement, as to which counsel need not express any opinion) for the valid issuance and sale of the Debentures to the Initial Purchasers as contemplated by this Agreement; (xi) Neither the offer, sale or delivery of the Debentures, nor the issuance of Common Stock upon conversion of the Debentures in accordance with the terms of the Debentures, nor the execution, delivery or performance by the Company of this Agreement, the Registration Rights Agreement or the Indenture, nor compliance by the Company with the provisions hereof or thereof, nor consummation by the Company of the transactions contemplated hereby or thereby, (A) conflicts or will conflict with or constitutes or will constitute a breach of, or a default under the certificate or articles of incorporation or bylaws or other organizational documents of the Company or any of the Material Subsidiaries or any agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective properties is bound that is an exhibit to any Incorporated Document or is known to such counsel after reasonable inquiry, or (B) will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company or any of the Subsidiaries, nor will any such action result in any violation of any existing law, or any regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws and, in the case of the Registration Rights Agreement, the Act, the Exchange Act and the 1939 Act), judgment, injunction, order or decree known to such counsel, and applicable to the Company, the Subsidiaries or any of their respective properties; (xii) To the best knowledge of such counsel, (A) other than as described or contemplated in the Offering Memorandum (or any supplement thereto), there are no legal or governmental proceedings pending or threatened against the Company or any of the Subsidiaries, or to which the Company or any of the Subsidiaries, or any of their property, are subject, which are of the type that would be required to be described in any of the Incorporated Documents and (B) there are no agreements, contracts, indentures, leases or other instruments, that are of the type that would be required to be described in the Offering Memorandum if it were a prospectus included in a registration statement on Form S-3 under the Act but are not described would be as required, or that are required to be filed as an exhibit to any of the Incorporated Documents that are not so filed as required; (xiii) No registration of the Debentures under the Act nor qualification of the Indenture under the 1939 Act is required for the sale of the Debentures to the Initial Purchasers as contemplated in this Agreement or for the Exempt Resales (assuming (A) that all representations and warranties made by the Initial Purchasers and the Company in this Agreement and in the Offering Memorandum are true, correct and accurate (including but not limited to the representations by the Initial Purchasers and the Company regarding the absence of general solicitation in connection with the Exempt Resales and regarding offers and sales outside the United States in reliance on Regulation S), (B) the Initial Purchasers comply with all of the covenants set forth in this Agreement (including but not limited to the covenants set forth in Section 2 hereof), (C) none of the Company, its ~~subsidiaries~~Subsidiaries and each person acting on its or their behalf have complied with the offering restrictions requirements of Regulation S, (D) that each person to whom the Initial Purchasers offer, sell or deliver the Debentures in the Exempt Resales is (x) a Qualified Institutional Buyer, (y) an Institutional Accredited Investor or (z) a person other than a U.S. person outside the United States in reliance on Regulation S under the Act, and (E) that the representations made by each person to whom Debentures are sold in reliance on Rule 144A or Regulation S are true, correct and accurate); (xiv) To the best knowledge of such counsel after reasonable inquiry, neither the Company, nor any of the Subsidiaries is in violation of any law, ordinance, administrative or governmental rule or regulation applicable to the Company, or any of the Subsidiaries, or of any decree of any court or governmental agency or body having jurisdiction over the Company, or any of the Subsidiaries, the effect of which could have a Material Adverse Effect on the Company and the Subsidiaries, taken as a whole; (xv) The statements in the Offering Memorandum, insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions, are accurate and present fairly the information shown; (xvi) Except as disclosed in the Offering Memorandum or permitted pursuant to this Agreement, such counsel does not know of any outstanding option, warrant or other right calling for the issuance of, and such counsel does not know of any commitment, plan or arrangement to issue, any share of capital stock of the Company or any security convertible into or exchangeable or exercisable for capital stock of the Company; and, except ~~in each case~~ as described in the Offering Memorandum, such counsel does not know of any holder of any security of the Company (except for holders of the Debentures and the Common Stock issuable upon conversion thereof) or any other person who has the right, contractual or otherwise, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Debentures or the right to have any Common Stock or other securities of the Company included in the Shelf Registration Statement or the right, as a result of the consummation of the transactions contemplated by the ~~Final Memorandum (exclusive~~ Operative Documents, to require registration under the Act of any ~~amendment~~ shares of Common Stock or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any other securities of the Company~~’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act.~~; (fxvii) ~~The Indenture shall have been executed~~ To the knowledge of such counsel, the Company, and ~~delivered by~~ each Subsidiary, is in material compliance with all Environmental Laws and there are no circumstances that would prevent or materially interfere with such compliance in the ~~parties thereto.~~future; (gxviii) On Except as set forth in the ~~Closing Date~~Offering Memorandum, to the ~~Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and~~ knowledge of such ~~agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date~~counsel, ~~the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from~~ there is no material Environmental Claim pending against the Company~~. All opinions~~, ~~certificates, letters and documents delivered pursuant to this Agreement will comply with~~ or the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, lettersSubsidiaries, and ~~documents in such quantities as the Initial Purchasers shall reasonably request.~~there are no past or present actions, activities, circumstances, events or incidents, i

Appears in 1 contract

Sources: Purchase Agreement (Physicians Resource Group Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Notes ~~shall, be subject, in the Initial Purchasers’ sole discretion,~~ under this Agreement are subject to the ~~accuracy~~ satisfaction of each of the following conditions: (a) All the representations and warranties of the Company contained ~~herein as of~~ in this Agreement shall be true and correct on the ~~date hereof~~ Closing Date with the same force and ~~as of each Closing Date,~~ effect as if made on and as of ~~each~~ the date hereof and the Closing Date, respectively. The Company shall have performed or complied with all of their obligations and agreements herein contained and required to be performed or complied with by them at or prior to the ~~accuracy~~ Closing Date. (b) No stop order suspending the sale of the ~~statements~~ Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Series A Notes; (ii) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Series A Notes; and (iii) on the Closing Date no action, suit or proceeding shall be pending against or affecting or, to the knowledge of the Company~~’s officers made pursuant~~ , threatened against, the Company or any Subsidiary before any court or arbitrator or any governmental body, agency or official which, if adversely determined, would prohibit the issuance of the Series A Notes except as disclosed in the Offering Memorandum. (i) Since the date hereof or since the dates as of which information is given in the Preliminary Offering Memorandum or Offering Memorandum, there shall not have been any Material Adverse Change, (ii) since the date of the latest balance sheet included in the Preliminary Offering Memorandum or Offering Memorandum, and except as described or contemplated in the Offering Memorandum there shall not have been any material change in the capital stock or long-term debt, or material increase in short-term debt, of the Company or any of the Subsidiaries and (iii) the Company and the Subsidiaries shall have no liability or obligation, direct or contingent, that is material to the ~~provisions hereof~~Company and the Subsidiaries taken as a whole and is required to be disclosed on a balance sheet in accordance with GAAP and is not disclosed on the latest balance sheet included in the Offering Memorandum. (e) You shall have received certificates, to dated the ~~performance~~ Closing Date, signed by (i) the President or any Vice President or any other executive officer and (ii) a principal financial or accounting officer of the Company confirming, as of ~~its covenants~~ the Closing Date, the matters set forth in paragraphs (a), (b), (c) and ~~agreements hereunder and to the following additional conditions:~~(d) of this Section 8. (af) On the Closing Date, ~~the Initial Purchasers~~ you shall have received ~~a legal~~ an, opinion ~~from ▇▇▇▇▇▇~~(satisfactory to you and your counsel), dated the Closing Date, of Alst▇▇ ~~Chance US LLP~~& Bird, counsel for the Company~~, dated the Closing Date~~, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the The Company and each of the Subsidiaries (other than those Subsidiaries organized under laws other than the United States or its ~~“significant subsidiaries” (as defined in Rule 1.02(w~~political subdivisions and Printpack Illinois, Inc.) ~~of Regulation S-X under the Exchange Act) have been~~ is a duly organized and ~~are~~ validly existing ~~as corporations~~ corporation in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation and are duly qualified to transact business as foreign corporations and are in good standing under~~ incorporation, has the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets~~ to conduct its business as it is currently being conducted and ~~conduct their respective businesses as~~ described in the ~~Final~~ Offering Memorandum, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction where the ownership, leasing or operation of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not, singly or in the aggregate, have a Material Adverse Effect; (ii) The Company has all necessary corporate power and authority to ~~enter into this Agreement,~~ execute and deliver the ~~Registration Rights Agreement~~ Transaction Documents and the ~~Indenture~~ Notes, and to ~~carry out all~~ perform its obligations under the ~~terms~~ Transaction Documents and ~~provisions hereof and thereof and of~~ the Notes and to ~~be carried out by it; all of~~ authorize issue, sell and deliver the ~~issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except~~ Notes as ~~otherwise set forth in the Final Memorandum, are owned beneficially~~ contemplated by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsPurchase Agreement; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the The Purchase Agreement has been duly ~~executed~~ authorized and ~~delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly~~ validly executed and delivered by the Company ~~(assuming the due authorization, execution~~ and ~~delivery thereof by the Trustee), the Indenture will be~~ constitutes a ~~legal,~~ legally valid and binding agreement of the Company, enforceable against ~~the Company~~ it in accordance with its ~~terms (subject~~terms, ~~as to enforcement of remedies,~~ subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~insolvency,~~ moratorium ~~or other~~ and similar laws affecting creditors’ ' rights generally ~~from time~~ and to ~~time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action~~ principles of ~~the Company and~~equity, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement whether at law or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect equity and except ~~that any~~ as rights to indemnity or and contribution thereunder may be limited by federal and state securities laws and public policy ~~considerations~~considerations underlying such laws; (iv) The issuance and sale of the Series A Notes has been duly authorized by the Company, and all legally required corporate proceedings by the Company in connection with the issuance and sale of the Series A Notes have been taken; when authenticated in accordance with the terms of the Indentures and delivered to and paid for by the you in accordance with the terms of the Purchase Agreement, the Series A Notes will be legally valid and binding agreements of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indentures, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity, whether at law or in equity; (v) The issuance of the Series B Notes has been duly authorized by the Company and all legally required corporate proceedings by the Company in connection with the issuance of the Series B Notes have been taken; when authenticated in accordance with the terms of the Indentures and delivered to and paid for by you in accordance with the terms of the Registered Exchange Offer and the Indentures, the Series B Notes will be the legally valid and binding agreements of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indentures, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity, whether at law or in equity; (vi) The Indentures have been duly authorized by the Company and conform in all material respects to the description thereof in the Offering Memorandum; assuming due authorization, execution and delivery thereof by the Trustee, the Indentures constitute the legally valid and binding agreements of the Company, enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought at law or in equity).; (vii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and to principles of equity, whether at law or in equity and except as rights to indemnity and contribution thereunder may be limited by federal and state securities laws and public policy considerations underlying such laws and except as rights to indemnity and contribution thereunder may be limited by federal and state securities laws and public policy considerations underlying such laws; (viii) To such counsel's knowledge, all of the outstanding shares of capital stock of the Company have been duly authorized, validly issued, and are fully paid and nonassessable and were not issued in violation of any preemptive rights or similar rights; (ix) ~~the execution~~ The Reorganization has been consummated and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes conforms in all material respects to the ~~Initial Purchasers by~~ description thereof in the ~~Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not~~ Offering Memorandum; (x) ~~require~~ All of the ~~consent~~issued and outstanding shares of capital stock of, ~~approval~~or other ownership interests in, ~~authorization~~each Subsidiary have been duly and validly authorized and issued. Based solely upon a review of the stock records of each Subsidiary, ~~registration~~ all of the shares of capital stock of, or ~~qualification~~ other ownership interests in, each Subsidiary are owned, directly or through Subsidiaries, by the Company. To the best knowledge of ~~or with any governmental authority~~such counsel, all shares of capital stock are fully paid and nonassessable, and are owned free and clear of all Liens, except ~~such as have been obtained or made~~ for Liens (i) created pursuant to the New Credit Facility and ~~specified in such opinion~~the Receivables Facility, (ii) ~~or such as may be required~~ permitted by the ~~securities~~ Indentures or ~~Blue Sky laws of~~ (iii) that will be released on the ~~various states of the United States of America and other U.S. jurisdictions~~ Closing Date in connection with the ~~offer and sale~~ closing of the ~~Notes by~~ Transactions. Such opinion need not cover Subsidiaries organized under laws other than the ~~Initial Purchasers~~ United States and ~~except those that may be required by the Act~~ its political subdivision or the ~~TIA~~ authorization and issuance of capital stock of Printpack Illinois, Inc.; (xi) To such counsel's knowledge, there are no outstanding subscriptions, rights, warrants, options, calls, convertible securities, commitments of sale or Liens (except for Liens (i) created pursuant to the New Credit Facility and the Receivables Facility and Liens, subscriptions and other rights and commitments in connection with the ~~exchange offer~~ organization and operation of Flexible Funding Corp. as contemplated in the Receivables Facility, (ii) permitted by the ~~Registration Rights Agreement, or~~ Indentures and/or (yiii) ~~conflict~~ that will be released on the Closing Date in connection with ~~or result in a breach or violation of any~~ the closing of the ~~terms and provisions~~ Transactions) related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or ~~constitute a default under~~other ownership interest in, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws Subsidiary; (xii) Neither of the Company or any of ~~its significant subsidiaries~~the Subsidiaries is (a) an "investment company" or a company "controlled" by an investment company within the meaning of the Investment Company Act of 1940, as amended, or ~~any statute~~ (b) a "holding company" or ~~any judgment~~a "subsidiary company" of a holding company or an "affiliate" thereof within the meaning of the Public Utility Holding Company Act of 1935, ~~decree~~as amended; (xiii) The descriptions in the Offering Memorandum, ~~order~~as of its date and on the Closing Date, ~~rule~~ under the captions "Prospectus Summary The Reorganization"; the description of the registration of the "Printpack" trademark under "Business Patents and Trademarks"; Environmental Matters and Government Regulation"; "Legal "Proceedings"; and "Management Incentive and Deferred Compensation" insofar as such statements constitute a summary of legal matters, documents or ~~regulation of~~ proceedings referred to therein, to such counsel's knowledge with respect to factual matters, fairly and accurately present or summarize in all material respects such legal matters, documents and proceedings; and to such counsel's knowledge, there is no action, suit or proceeding before or by any court or ~~other~~ governmental ~~authority~~ agency or ~~any arbitrator known to such counsel and applicable to the Company~~ body, domestic or ~~its significant subsidiaries; (x) the Company is not an “investment company” and~~foreign, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal pending against or ~~governmental proceedings pending or threatened to which~~ affecting the Company or any of ~~its subsidiaries is a party or to which~~ the ~~property of the Company~~ Subsidiaries, or any of ~~its subsidiaries~~ their respective properties, which is ~~subject that would be~~ required to be ~~described~~ disclosed and is not so disclosed, in the Offering Memorandum, or which would result, singly or in the aggregate, in a ~~prospectus pursuant~~ Material Adverse Effect or which would materially and adversely affect the consummation of this Agreement or the transactions contemplated hereby, and to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers best knowledge of the Company and ~~public officials and~~the Subsidiaries, ~~as to matters involving the application of laws of any jurisdiction other than the State of New York~~ no such proceedings are contemplated or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Datethreatened. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Note Purchase Agreement (Printpack Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and again on the Closing Date as if made again on and as of such date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of ~~its covenants and agreements hereunder~~ their obligations hereunder, and to each of the following additional terms and conditions: (a) ~~On the Closing Date, the Initial Purchasers~~ The Offering Memorandum shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~been printed and copies made available to you not later than 5:00 p.m., ~~counsel for the Company~~New York City time, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or within two business days following the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, or at such later date and time as you may approve in writing. (b) No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) Closing Date that the ~~purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”)~~ Offering Memorandum or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto ~~prepared~~ contains an untrue statement of a fact which, in ~~accordance with~~ the ~~provisions~~ opinion of ~~this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, ~~dated~~ is material or omits to state a fact which, in the ~~Closing Date~~opinion of such counsel, ~~with respect~~ is material and necessary to ~~certain~~ make the statements contained in the Offering Memorandum, in the light of the circumstances under which they were made, not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Series A Notes, the Guarantees, the Registration Rights Agreement, the Supplemental Indenture and the Offering Memorandum, and all other legal matters relating to this Agreement and ~~such other related matters as~~ the transactions contemplated hereby, shall be reasonably satisfactory in all material respects to counsel for the Initial ~~Purchasers may~~ Purchasers, and the Company shall have furnished to such counsel such documents as they reasonably ~~require. In rendering~~ request for the purpose of enabling them to pass upon such ~~opinion~~matters. (d) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois), special counsel to the Company, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant Corporate Secretary and General Counsel of the Company, each shall have furnished to the Initial Purchasers their written opinions addressed to the Initial Purchasers and dated the Closing Date, in the form provided separately to the Initial Purchasers on the date hereof, with such changes, if any, as may be mutually agreed by the parties. (e) The Initial Purchasers shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Series A Notes, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require. (f) The Company shall issue a notice of redemption for its 2008 Notes on the date hereof, or promptly hereafter. (g) The Company, the Guarantors and the Trustee shall have entered into the Supplemental Indenture and the Initial Purchasers shall have received ~~and may rely upon such certificates and other documents and information~~ counterparts, conformed as ~~it may reasonably request to pass upon such matters~~executed, thereof. (ch) The Company, the Guarantors and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof. (i) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP a letter or~~ PricewaterhouseCoopers, LLP, independent certified public accountants, letters ~~dated~~addressed to the Company and the Initial Purchasers substantially in the form heretofore approved by ▇▇▇▇▇▇ Brothers Inc., ~~respectively,~~ and dated the date hereof and the Closing Date, (i) confirming that they are independent accountants as required by the Securities Act and its Rules and Regulations or under the rules of the American Institute of Certified Public Accountants, as applicable, (ii) stating, as of the date of each letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in ~~form~~ the Offering Memorandum, as of a date not more than five business days prior to the date of each letter), the procedures and ~~substance~~ findings of such firm with respect to the financial information and other matters covered by the letter delivered concurrently with this Agreement and (iii) with respect to the letter delivered on the Closing Date, confirming the procedures and findings set forth in the letter delivered concurrently with this Agreement; such letters shall be reasonably satisfactory to ~~counsel for the Initial Purchasers.~~▇▇▇▇▇▇ Brothers Inc. (dj) The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers at a certificate, dated as of the Closing Date, of a ~~certificate of its Chairman of the Board, its~~ Vice President ~~or its Chief Executive Officer~~ and its Chief Financial Officer ~~satisfactory to the Initial Purchasers to the effect that:~~ or Treasurer stating that (i) the representations and warranties (after giving effect to all materiality qualifiers therein) of the Company in this Agreement and the Guarantors in Section 2 are true and correct as ~~if made on~~ of such Closing Date and as giving effect to the consummation of the ~~Closing Date~~transactions contemplated by this Agreement; ~~and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and~~ (ii) ~~subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither~~ the Company ~~nor~~ and each Guarantor has complied in all material respects with all of its agreements contained herein; and (iii) the conditions set forth in Sections 8(k) and 8(l) of this Agreement have been fulfilled. (k) None of the Company or any of its subsidiaries ~~has sustained~~ shall have sustained, since the date of the latest audited financial statements included in the Offering Memorandum, (i) any ~~material~~ loss or interference with ~~their respective businesses or properties~~ its business from fire, ~~flood~~explosion, ~~hurricane, accident~~ flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any legal~~ court or governmental ~~proceeding~~action, ~~and~~ order or decree, otherwise than as set forth or contemplated in the Offering Memorandum or (ii) since such date, there ~~has~~ shall not have been any ~~materially adverse change (including, without limitation, a~~ change in ~~management~~ the capital stock or ~~control~~long-term debt of the Company, or any Material Adverse Effect, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), ~~or development involving a prospective materially adverse change~~is, in the ~~condition (financial or otherwise)~~reasonable, ~~management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ good faith judgment of the ~~Company~~ Initial Purchasers, so material and adverse as to make it impracticable or ~~any~~ inadvisable to proceed with the payment for and delivery of ~~its subsidiaries, taken as a whole, except~~ the Series A Notes being delivered on such Closing Date on the terms and in ~~each case as described~~ the manner contemplated in ~~or contemplated by~~ the ~~Final Memorandum (exclusive of any amendment or supplement thereto)~~Offering Memorandum. (el) Subsequent to the execution and delivery of this Agreement ~~and prior to the Closing Date, there~~ (i) no downgrading shall ~~not~~ have occurred ~~any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change,~~ in the rating accorded ~~any of~~ the Company’s 's debt securities by any “"nationally recognized statistical rating organization”, ," as ~~such~~ that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities. (fm) The ~~Indenture~~ Series A Notes shall have been ~~executed and delivered~~ designated for trading on the PORTAL Market; provided that the failure of the Series A Notes to be so listed shall not be due to any action taken or failure to act by ~~all~~ the ~~parties thereto~~Initial Purchasers. (gn) On Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by federal or state authorities; (iii) the United States shall have become directly engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), in each case (i) through (iv), as to make it, in the judgment of the Initial Purchasers, impracticable or inadvisable to proceed with offering or delivery of the Series A Notes being delivered on the Closing ~~Date,~~ Date on the ~~Initial Purchasers shall have received~~ terms and in the ~~Registration Rights Agreement executed by~~ manner contemplated in the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the CompanyOffering Memorandum. All opinions, ~~certificates~~letters, ~~letters~~ evidence and ~~documents delivered pursuant to~~ certificates mentioned above or elsewhere in this Agreement ~~will comply~~ shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory ~~in all material respects~~ to ~~the Initial Purchasers and~~ counsel for the Initial Purchasers~~. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request~~.

Appears in 1 contract

Sources: Purchase Agreement (Ball Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements Offered Securities hereunder ~~and~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Offered Securities in any jurisdiction designated by the Initial ~~Purchasers~~ Purchaser shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated. (b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the financial condition, business, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchaser, would materially, adversely affect the market for the Offered Securities, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any officer or director of the Company or any of the Subsidiaries, which makes any statement made in the Offering Memorandum untrue in any material respect or which, in the opinion of the Company and its counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchaser, materially, adversely affect the market for the Offered Securities. (c) You shall have received ~~a legal~~ on the Closing Date an opinion ~~from~~ of Milbank, Tweed, Hadl▇▇ & ▇cCl▇▇, ▇▇~~▇▇▇▇ Chance US LLP,~~ ecial counsel for the Company, dated the Closing ~~Date~~Date and addressed to you, ~~to the effect~~ that: (i) ~~such counsel has no reason to believe that (other than the financial statements~~ The Company is a corporation duly incorporated and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing ~~as corporations~~ in good standing under the laws of ~~their respective jurisdictions~~ the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have Delaware with full corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made Offering Memorandum (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)~~, neither~~ ; (ii) Each Subsidiary is a corporation duly incorporated and validly existing and in good standing under the ~~Company nor any~~ laws of the jurisdiction of its ~~subsidiaries has sustained any material loss or interference~~ organization, with ~~their respective businesses or~~ full corporate power and authority to own, lease and operate its properties ~~from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding,~~ and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, to conduct its business ~~affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case~~ as described in ~~or contemplated by~~ the ~~Final~~ Offering Memorandum (~~exclusive of~~ and any amendment or supplement thereto).; (eiii) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction The authorized capital stock of the ~~possible change,~~ Company is as set forth under the caption "Capitalization" in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Offering Memorandum;

Appears in 1 contract

Sources: Purchase Agreement (Graham Field Health Products Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Notes ~~shall, be subject, in~~ on the ~~Initial Purchasers’ sole discretion,~~ Closing Date is subject to the ~~accuracy~~ accuracy, as of the Closing Date, of the representations and warranties of ~~the Company~~ LNR contained ~~herein as of the date hereof~~ herein, and ~~as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof,~~ to the performance by ~~the Company~~ LNR of its covenants and ~~agreements~~ obligations hereunder and to the following additional ~~conditions:~~conditions (any of which may be waived in writing by the Initial Purchaser): (a) On the Closing ~~Date,~~ Date the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from~~ the opinions, dated as of the Closing Date and addressed to the Initial Purchaser (and stating that it may be relied upon by counsel to the Initial Purchaser), of Clifford Chance US LLP, counsel for LNR, and Bilzin Sumberg Baena P▇▇▇▇ & ▇xelrod, LLP, special counsel to certain Desi▇▇▇▇▇▇ ▇▇▇▇▇▇iaries an▇ ▇▇▇ ~~Chance US LLP~~▇and Partnership, in form and substance satisfactory to counsel for the ~~Company, dated the Closing Date~~Initial Purchaser, to the effect that: (i) ~~such counsel has no reason to believe that (other than~~ Each of LNR, the ~~financial statements~~ Designated Subsidiaries and ~~other financial information contained therein~~the Land Partnerships is duly organized, validly existing and, as to ~~which such counsel need express no opinion)~~ LNR and the ~~Final Memorandum~~Designated Subsidiaries that are corporations, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ organization and, has all requisite corporate or other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the ~~Final~~ Memorandum. Each of LNR, the Designated Subsidiaries and the ~~Company~~ Land Partnerships is duly qualified to do business and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification and where LNR has ~~corporate power to enter into this Agreement,~~ informed such counsel the ~~Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes~~ failure to be ~~carried out by it~~so qualified would, individually or in the aggregate, have a Material Adverse Effect. (ii) LNR has the authorized capital stock as set forth under "Capitalization" in the Memorandum; all of the outstanding shares of Common Stock and Class B Common Stock of LNR and the capital stock of each Designated Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and were not issued ~~and~~ in violation of any preemptive or similar rights; all of the outstanding shares of capital stock of ~~each of~~ the ~~Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum,~~ Designated Subsidiaries are owned ~~beneficially~~ by ~~the Company~~ LNR or another Subsidiary, insofar as such counsel is aware, free and clear of ~~any perfected security interests or,~~ all liens (other than those created pursuant to the ~~best knowledge~~ Credit Agreement), encumbrances, equities and claims or restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of certain jurisdictions) or voting; LNR indirectly owns a 50% interest in each Land Partnership; such ~~counsel~~interest in each Land Partnership has been duly authorized and validly issued and is, ~~any other security interests~~insofar as such counsel is aware, free and clear of all liens, encumbrances, equities or and claims~~, except for pledges of subsidiary stock under debt instruments;~~. (iii) ~~the statements~~ Insofar as such counsel is aware, except as set forth ~~under the heading “Description of Notes”~~ in the ~~Final~~ Memorandum or in a document incorporated by reference into the Memorandum, ~~insofar~~ (A) there are no outstanding options, warrants or other rights to purchase from LNR or any Designated Subsidiary or either Land Partnership shares of capital stock or ownership interests in LNR or any Designated Subsidiary or ownership interests in either Land Partnership, (B) other than LNR's Class B Common Stock or as ~~such statements purport to summarize certain provisions~~ provided in the Registration Rights Agreement or either of the ~~Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences”~~ Other Registration Rights Agreements (as defined in the ~~Final Memorandum~~Registration Rights Agreement), ~~insofar~~ there are no outstanding agreements or other obligations of LNR or any Designated Subsidiary to issue, or other rights to cause LNR or any Designated Subsidiary or either Land Partnership to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in LNR or any Designated Subsidiary or ownership interests in either Land Partnership and (C) except as ~~such statements constitute a summary~~ provided in the Registration Rights Agreement or either of the ~~legal matters~~Other Registration Rights Agreements, ~~documents~~ no holder of securities of LNR or ~~proceedings referred~~ any Designated Subsidiary (other than the Notes) is entitled to ~~therein,~~ have ~~been reviewed~~ such securities registered under a registration statement filed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder;LNR. (iv) LNR has all requisite corporate power and authority to execute, deliver and perform its obligations under the ~~execution and delivery of this Agreement have been duly authorized by all necessary corporate action of~~ Notes, the ~~Company~~ Exchange Notes, the Private Exchange Notes and the Registration Rights Agreement and to perform its obligations under the Indenture. (v) The Indenture is in sufficient form for qualification under the Trust Indenture Act; the Indenture has been duly and validly authorized, executed and delivered by ~~the Company; (v) the execution~~ LNR, and ~~delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company~~ (assuming the due authorization, execution and delivery ~~thereof~~ of the Indenture by the Trustee), ) constitutes the ~~Indenture will be a legal,~~ valid and legally binding agreement of ~~the Company~~LNR, enforceable against ~~the Company~~ LNR in accordance with its ~~terms~~ terms, except to the extent that the enforcement thereof may be affected by (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in ~~effect~~a proceeding in equity or at law)~~. The Indenture meets the requirements for qualification under the TIA~~. (vi) The Notes are in the form contemplated by the Indenture. The Notes have each been duly ~~authorized by all necessary corporate action of the Company and~~and validly authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by ~~the Company~~ LNR and, when paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of ~~the Company~~LNR, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder~~ , and enforceable against LNR in accordance with their terms, except to the extent that the enforcement thereof may be affected by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of ~~securities~~ equity and the discretion of the ~~Company has~~ court before which any ~~right which has not been fully exercised~~ proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;at law). (vii) ~~the~~ The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by ~~the Company,~~ LNR and when ~~the Exchange Notes and the Private Exchange Notes are duly~~ executed and delivered by LNR, the ~~Company in accordance with the terms of~~ exchange transactions described in, or otherwise contemplated by the Registration Rights Agreement ~~and the Indenture~~ (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of LNR, entitled to the ~~Company~~benefits of the Indenture, and enforceable against LNR in accordance with their ~~terms~~ terms, except to the extent that the enforcement thereof may be affected by (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time~~ and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in ~~effect~~a proceeding in equity or at law). (viii) The Registration Rights Agreement has been duly and validly authorized, executed and delivered by LNR, and (assuming due authorization, execution and delivery thereof by the ~~Company~~ Initial Purchaser) constitutes the valid and legally binding agreement of LNR enforceable against LNR in accordance with its terms, except to the extent that (A) the enforcement thereof may be affected by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal or state securities laws or public policy considerations. (ix) LNR has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the ~~Registration Rights Agreement~~transactions contemplated hereby; this Agreement and the ~~Registration Rights~~ consummation by LNR of the transactions contemplated hereby have been duly and validly authorized by LNR. This Agreement has been ~~duly authorized by the Company and, when~~ duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations)LNR. (ixx) The Indenture, the ~~execution~~ Notes and ~~delivery~~ the Registration Rights Agreement conform as to legal matters in all material respects to the descriptions of them contained or incorporated by reference in the ~~Company of~~Memorandum. (xi) Insofar as such counsel is aware there are (i) no legal or governmental proceedings pending or threatened to which LNR or any Designated Subsidiary or either Land Partnership is a party or to which the property or assets of LNR or any Designated Subsidiary or either Land Partnership is subject which would be required under the Act to be described in a registration statement of LNR under the Act or in a prospectus meeting the requirements of Section 10 of the Act, and are not described in the ~~performance~~ Memorandum, or which seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Memorandum and (ii) no contracts, agreements or other documents to which LNR or any Designated Subsidiary or either Land Partnership is a party which would be required under the Act to be described in a registration statement or prospectus of LNR and are not described in the Memorandum. The descriptions contained or incorporated by reference in the ~~Company~~ Memorandum of ~~its obligations under, this~~ the Credit Agreement, the ~~Registration Rights~~ partnership agreements of each of the Land Partnerships, the separation and distribution agreement relating to the spin-off of LNR and the By-Laws of LNR are accurate in all material respects and fairly summarize the provisions of such agreements and documents which they purport to summarize. (xii) Insofar as such counsel is aware, neither LNR nor any Designated Subsidiary is in violation of its certificate of incorporation or bylaws or other comparable organizational documents and neither Land Partnership is in violation of the partnership agreement under which it was formed. (xiii) The execution, delivery and performance of this Agreement, the Indenture and the ~~Notes~~Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the ~~Exchange Notes and the Private Exchange Notes, the issuance, offering~~ issuance and sale of the Notes to the Initial ~~Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do~~ Purchaser) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a lien on any property or assets of LNR or any Subsidiary or Investment Affiliate with respect to (i) the terms or provisions of any of the terms ~~and~~ or provisions ofof any material contract, ~~or constitute a default under, any indenture, mortgage, deed of trust, lease or other material~~ agreement or ~~instrument, known to~~ instrument of which such ~~counsel,~~ counsel is aware to which ~~the Company~~ LNR or any ~~of its significant subsidiaries~~ Designated Subsidiary or either Land Partnership is a party or by which ~~the Company~~ LNR or any Designated Subsidiary or either Land Partnership may be bound, (ii) the certificate of ~~its significant subsidiaries~~ incorporation or bylaws or other comparable organizational documents of LNR or any Designated Subsidiary or the partnership agreement of ~~their respective properties are bound~~either Land Partnership, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the ~~charter documents or by-laws~~ accuracy of the ~~Company or~~ representations and warranties of the Initial Purchaser in Section 8 hereof) any ~~of its significant subsidiaries~~statute, ~~or any statute or any~~ judgment, decree, order, rule or regulation generally applicable to transactions of ~~any court~~ the type contemplated by the Memorandum or ~~other governmental authority or any arbitrator~~ known to such counsel ~~and~~ to be applicable to ~~the Company~~ LNR or ~~its significant subsidiaries;~~any Designated Subsidiary or either Land Partnership. (xxiv) No consent, approval, authorization or order of any governmental authority is required for the ~~Company is not an “investment company” and, after giving effect to the Offering~~ issuance and sale by LNR of the Notes to the Initial Purchaser, or the other transactions contemplated in this Agreement, except (i) as may be required under applicable securities laws in connection with the registration under the Act of the Notes, and the Private Exchange Notes, if applicable, pursuant to the Registration Rights Agreement and (ii) as may be required under state securities or blue sky laws (as to which such counsel need express no opinion). (xv) Neither LNR nor any of its subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds ~~therefrom~~from such sale (as described in the Memorandum under the caption "Use of Proceeds") will be, ~~will not be~~ an “"investment company”, " as ~~such~~ that term is defined in the ~~1940~~ Investment Company Act~~; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which~~ , and the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumrules and regulations under it. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiiixvi) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial ~~Purchasers~~ Purchaser as contemplated by this Agreement and the ~~Final~~ Memorandum or in connection with the initial resale of the Notes by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the ~~TIA~~Trust Indenture Act, in each case assuming (i~~) (A~~) that the purchasers who buy such Notes in the initial resale thereof are ~~qualified institutional buyers~~ Qualified Institutional Buyers or Accredited Investors, as those terms are defined in ~~Rule 144A promulgated~~ the rules under the ~~Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S~~Act, (ii) the accuracy of the Initial ~~Purchasers’~~ Purchaser's representations in Section 8 and those of ~~the Company~~ LNR contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial ~~Purchasers~~ Purchaser and the initial resale thereof and (iii) the due performance by the Initial ~~Purchasers~~ Purchaser of the agreements set forth in Section 8 ~~hereof~~hereof and the offering and transfer procedures set forth in the Memorandum. (xvii) Neither the sale, issuance, execution or delivery of the Notes nor any other transaction contemplated by this Agreement will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. (xviii) The statements under the captions "Description of the Notes," "Exchange Offer; Registration Rights" and "Notice to Investors; Transfer Restrictions" in the Memorandum or incorporated therein by reference, insofar as such statements constitute a summary of the documents referred to therein or matters of law, provide a fair and accurate summary in all material respects of the information called for with respect to such documents and matters under current law. At the time the foregoing opinion is delivered, Clifford Chance US LLP shall additionally state that it has partici▇▇▇▇▇ ▇▇ conferences with officers and other representatives of LNR, representatives of the independent public accountants for LNR, representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which conferences the contents of the Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Memorandum (except to the extent specified in subsection 7(a)(xviii)), no facts have come to its attention which lead it to believe that the Memorandum, on the date thereof or at the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (it being understood that such firm need express no belief with respect to the financial statements and related notes thereto and the other financial or statistical data included in the Memorandum). In rendering ~~any such~~ its opinion, ~~such counsel~~ Clifford Chance US LLP may ~~rely,~~ state that they express no opinion as to ~~matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws~~ ▇▇▇ ▇▇▇s of any jurisdiction other than the federal laws of the United States, the laws of the State of New York ~~or the United States or~~ and the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.Co

Appears in 1 contract

Sources: Purchase Agreement (LNR Property Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase ~~and pay for~~ the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements Firm Debentures hereunder ~~and~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Debentures in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated. (b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum, which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Debentures, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Debentures. (c) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from~~ of Brob▇▇▇, ▇▇le▇▇▇ & ▇arr▇▇▇▇ ~~Chance US LLP~~▇▇▇, counsel for the Company, dated the Closing ~~Date~~Date and addressed to the Initial Purchasers, to the effect that: (i) The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority, and all Permits as are required under applicable law, to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum (and any amendment or supplement thereto); the Company is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such ~~counsel~~ registration or qualification, except where the failure so to register or qualify or to be in good standing or to have such Permits does not have a Material Adverse Effect; (ii) The authorized capital stock of the Company is as set forth under the caption "Capitalization" in the Offering Memorandum; and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Offering Memorandum under the caption "Description of Capital Stock"; (iii) All the shares of capital stock of the Company outstanding prior to the issuance of the Debentures have been duly authorized and validly issued, are fully paid and nonassessable; (iv) The shares of Common Stock issuable upon conversion of the Debentures have been duly authorized and when issued and delivered upon conversion of the Debentures will be validly issued, fully paid and nonassessable and will be free of any (A) preemptive rights under the Company's Certificate of Incorporation or applicable Delaware law or (B) to the knowledge of such counsel, and except as set forth in the Offering Memorandum, similar rights that entitle or will entitle any person to acquire any Common Stock upon the issuance of the Debentures and the issuance of the Common Stock upon conversion of the Debentures by the Company; (v) The Company has ~~no reason~~ corporate power and authority to ~~believe~~ enter into this Agreement and the Registration Rights Agreement and to issue, sell and deliver the Debentures to be sold by it to the Initial Purchasers as provided herein, and this Agreement and the Registration Rights Agreement have been duly authorized, executed and delivered by the Company and are valid, legal and binding agreements of the Company, enforceable against the Company in accordance with their terms, except (A) as enforcement of rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy and (B) subject to the qualification that ~~(other than~~ the ~~financial statements~~ enforceability of the Company's obligations hereunder and thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other ~~financial information contained therein~~laws relating to or affecting creditors' rights generally and by general equitable principles; (vi) The Indenture has been duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, is a valid and binding agreement of the Company, enforceable in accordance with its terms, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; no qualification of the Indenture under the 1939 Act is required in connection with the offer and sale of the Debentures contemplated hereby or in connection with the Exempt Resales; (vii) The Debentures have been duly and validly authorized by the Company and when executed by the Company in accordance with the Indenture and, assuming due authentication of the Debentures by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, subject to the qualification that the enforceability of the Company's obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors' rights generally and by general equitable principles; (viii) Neither the offer, sale or delivery of the Debentures, the issuance of Common Stock upon conversion of the Debentures or the payment to holders of Debentures of an amount of cash equal to the market price of the underlying Common Stock in lieu of conversion into Common Stock in accordance with the terms of the Indenture, the execution, delivery or performance by the Company of this Agreement, the Registration Rights Agreement or the Indenture, compliance by the Company with the provisions hereof or thereof nor consummation by the Company of the transactions contemplated hereby or thereby conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, in any material respect, the certificate or articles of incorporation or bylaws or other organizational documents of the Company or any material agreement, indenture, lease or other instrument to which the Company is a party or by which it or its properties is bound that is an exhibit to any Incorporated Document or is known to such counsel, or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any material agreement or instrument to which it is a party or by which it may be bound or to which any of the Company's property or assets is subject that is an exhibit to any Incorporated Document or is known to such counsel, nor will any such action result in any violation in any material respect of any existing law, or any regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws and, in the case of the Registration Rights Agreement, the Act and the Exchange Act and the 1939 Act), judgment, injunction, order or decree known to such counsel, applicable to the Company or any of its properties; (ix) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Exchange Act, or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Debentures and the shares of Common Stock issuable upon conversion of the Debentures, or such as may be required to qualify the Indenture under the 1939 Act, and such as may be required in connection with the performance by the Company of its obligations under the Registration Rights Agreement, as to which such counsel need not express no an opinion) for the ~~Final~~ valid issuance and sale of the Debentures to the Initial Purchasers as contemplated by this Agreement; (x) To the knowledge of such counsel, (A) other than as described or contemplated in the Offering Memorandum (or any supplement thereto), there are no legal or governmental proceedings pending or threatened against the Company, or to which the Company, or any of its property, are subject, which are not disclosed in the Offering Memorandum and which, if adversely decided, are reasonably likely to cause a Material Adverse Effect or materially affect the issuance of the Debentures or the consummation of the transactions contemplated by the Operative Documents; (xi) The statements in the Offering Memorandum under the captions "Description of Debentures" and "Certain United States Federal Tax Considerations," insofar as such statements constitute summaries of the documents and legal matters referred to therein, fairly summarize, in all material respects, such documents and legal matters; (xii) When the Debentures are issued and delivered pursuant to this Agreement, such Debentures will not be of the same class (within the meaning of Rule 144A(d)(3) under the Act) as any security of the Company that is listed on a national securities exchange registered under Section 6 of the Exchange Act or that is quoted in a United States automated interdealer quotation system; (xiii) It is not necessary in connection with the offer, sale and delivery of the Debentures to the Initial Purchasers in the manner contemplated by this Agreement or in connection with Exempt Resales to register the Debentures under the Securities Act; (xiv) The Company is not required to deliver the information specified in Rule 144A(d)(4) in connection with the offering and resale of the Debentures by the Initial Purchasers; (xv) The Company is not required to obtain stockholder consent or approval pursuant to the rules of the Nasdaq National Market in connection with the issuance, offering and resale of the Debentures; and (xvi) Although such counsel have not undertaken, except as otherwise indicated in their opinion, to determine independently, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Offering Memorandum, such counsel have participated in the preparation of the Offering Memorandum, including review and discussion of the contents thereof, and have reviewed the Incorporated Documents, and nothing has come to the attention of such counsel that has caused them to believe that the Offering Memorandum, as of its date and as of the Closing Date or the ~~date of such opinion~~Option Closing Date, ~~included or includes any~~ as the case may be, contained an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary ~~in order~~ to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not ~~misleading~~misleading or that any amendment or supplement to the Offering Memorandum, as of its respective date, and as of the Closing Date or the Option Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and the notes thereto and the schedules and other financial and statistical data included or incorporated by reference in the Offering Memorandum and information furnished by or on behalf of the Initial Purchasers). The opinion of such counsel shall be limited to the laws of the United States, the State of California and the internal corporation law of the State of Delaware. (iid) The Initial Purchasers shall have received on the ~~Company~~ Closing Date an opinion of Keit▇ ▇. ▇▇▇▇▇▇▇, ▇▇q., General Counsel of the Company, dated the Closing Date and ~~each of its “significant subsidiaries”~~ addressed to the Initial Purchaser to the effect that: (i) Each Significant Subsidiary (as ~~defined in Rule 1.02(w~~listed on Schedule III) ~~of Regulation S-X under the Exchange Act) have been~~ is a corporation duly organized and ~~are~~ validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under~~ the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each jurisdiction of its ~~significant subsidiaries have~~ organization, with full corporate power and ~~authority~~ authority, and all Permits as are required under applicable law, to own, ~~lease~~ lease, and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the ~~Final Memorandum~~Offering Memorandum (and any amendment or supplement thereto); each Subsidiary is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, ~~and~~ except where the ~~Company has corporate power~~ failure so to ~~enter into this Agreement, the Registration Rights Agreement and the Indenture and~~ register or qualify or to ~~carry out~~ be in good standing or to have such Permits does not have a Material Adverse Effect; all the ~~terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and~~ outstanding shares of capital stock of each of the ~~Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum~~Significant Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and, with the exception of Medicus, to the knowledge of such counsel, are wholly owned ~~beneficially~~ by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any ~~perfected~~ security ~~interests or~~interest, lien, adverse claim, equity or other encumbrance ("Lien"), except as described in the Offering Memorandum; and upon completion of the Medicus Acquisition (as defined in the Offering Memorandum), all of the outstanding shares of capital stock of Medicus will be wholly owned by the Company directly, free and clear of any Liens; (ii) Neither the offer, sale or delivery of the Debentures, the issuance of Common Stock upon conversion of the Debentures, the execution, delivery or performance by the Company of this Agreement, the Registration Rights Agreement or the Indenture, compliance by the Company with the provisions hereof or thereof nor consummation by the Company of the transactions contemplated hereby or thereby conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, in any material respect, the certificate or articles of incorporation or bylaws or other organizational documents of any of the Significant Subsidiaries or any material agreement, indenture, lease or other instrument to which any of the ~~best knowledge~~ Significant Subsidiaries is a party or by which any of them or any of their respective properties is bound that is an exhibit to any Incorporated Document or is known to such counsel, ~~any other security interests, liens, encumbrances, equities~~ or ~~claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes”~~ will result in the ~~Final Memorandum~~creation or imposition of any lien, ~~insofar as such statements purport to summarize certain provisions~~ charge or encumbrance upon any property or assets of any of the ~~Notes~~ Significant Subsidiaries pursuant to the terms of any material agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of the property or assets of any of them is subject that is an exhibit to any Incorporated Document or is known to such counsel, nor will any such action result in any violation in any material respect of any existing law, or any regulation, ruling (assuming compliance with all applicable state securities and ~~the Indenture~~Blue Sky laws and, ~~provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences”~~ in the ~~Final Memorandum, insofar as such statements constitute a summary~~ case of the ~~legal matters~~Registration Rights Agreement, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.the

Appears in 1 contract

Sources: Purchase Agreement (Quadramed Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers to purchase ~~and pay for~~ the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements Firm Debentures hereunder ~~and~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Debentures in any jurisdiction designated by the Initial Purchasers shall have ~~received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~been issued and no proceedings for that purpose shall have been commenced or shall be pending or, ~~counsel for~~ to the knowledge of the Company, ~~dated the Closing Date,~~ shall be contemplated. (b) Subsequent to the ~~effect that:~~ effective date of this Agreement, there shall not have occurred (i) ~~such counsel has no reason to believe that~~ any change, or any development involving a prospective change, in or affecting the condition (~~other than~~ financial or other), business, prospects, properties, net worth or results of operations of the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion)~~ Company or the ~~Final~~ Subsidiaries not contemplated by the Offering Memorandum, as which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Debentures, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its ~~date~~ counsel or the ~~date~~ Initial Purchasers and their counsel, requires the making of ~~such opinion, included~~ any addition to or ~~includes any untrue statement of~~ change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or ~~omitted or omits to state any material fact~~ necessary in order to make the statements ~~therein~~therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy opinion of the Initial Purchasers~~’ representations in Section 8 and those of~~ , materially adversely affect the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel market for the Initial Purchasers, upon the opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersDebentures. (c) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and~~ on the Closing ~~Date~~Date an opinion of Calf▇▇, ~~in form and substance satisfactory to~~ ▇▇lter & Gris▇▇▇▇ ▇▇▇, counsel for the ~~Initial Purchasers. (d) The Company shall have furnished or caused to be furnished~~ Company, dated the Closing Date and addressed to the Initial ~~Purchasers at the Closing a certificate of its Chairman of the Board~~Purchasers, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers~~ to the effect that: (i) The Incorporated Documents (except for the ~~representations~~ financial statements and ~~warranties~~ the notes thereto and the schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion), at the time they were filed, complied as to form in all material respects with the requirements of the Company in this Agreement are true and correct as if made on and as of the Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; andExchange Act; (ii) ~~subsequent~~ The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to ~~the respective dates~~ own, lease and operate its properties and to conduct its business as ~~of which information is given~~ described in the ~~Final~~ Offering Memorandum (~~exclusive of~~ and any amendment or supplement thereto), ~~neither~~ and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify does not have a Material Adverse Effect; (iii) Each Material Subsidiary (as hereinafter defined) is a corporation duly incorporated and validly existing and in good standing under the laws of the jurisdiction of its organization, with full corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Offering Memorandum (and any amendment or supplement thereto); each Material Subsidiary is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or to be in good standing would not have a Material Adverse Effect; and all the outstanding shares of capital stock of each of the Material Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and are owned of record by the Company ~~nor~~ directly, or indirectly through one of the other Material Subsidiaries, free and clear of any perfected security interest or, to such counsel's knowledge, any other lien, adverse claim, equity or other encumbrance, except as disclosed in, or contemplated by, the Offering Memorandum (or any amendment or supplement thereto); (iv) The Company has all necessary corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to issue, sell and deliver the Debentures to be sold by it to the Initial Purchasers as provided herein, and this Agreement and the Registration Rights Agreement have each been duly authorized, executed and delivered by the Company and each constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforcement of rights to indemnity and contribution under each agreement may be limited by Federal or state securities laws or principles of public policy and except to the extent that enforceability of each agreement is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity; (v) The Indenture has been duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, is a valid and binding agreement of the Company, enforceable in accordance with its terms, except to the extent that enforceability thereof is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity; (vi) The Debentures have been duly and validly authorized by the Company and when executed by the Company in accordance with the Indenture and, assuming due authentication of the Debentures by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, except to the extent that enforceability thereof is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity; (vii) The shares of Common Stock issuable upon conversion of the Debentures have been duly authorized and reserved for issuance and, when issued and delivered upon conversion of the Debentures, in accordance with the terms thereof, will be validly issued, fully paid and nonassessable and will be free of any (A) preemptive rights under the Amended and Restated Certificate of Incorporation of the Company or the Delaware General Corporation Law or (B) to the best knowledge of such counsel after reasonable inquiry, similar rights; (viii) The authorized capital stock of the Company is as set forth under the caption "Capitalization" in the Offering Memorandum; and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Offering Memorandum under the caption "Description of Capital Stock"; (ix) All the shares of capital stock of the Company outstanding prior to the issuance of the Debentures to be issued and sold by the Company hereunder have been duly authorized and validly issued, are fully paid and nonassessable and were issued and sold in compliance with all applicable Federal and state securities laws; (x) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company or any Subsidiary (except such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Debentures, or such as may be required to qualify the Indenture and, if necessary, the Guarantees under the 1939 Act, and such as may be required in connection with the performance by the Company of its ~~subsidiaries has sustained~~ obligations under the Registration Rights Agreement, as to which counsel need not express any ~~material loss~~ opinion) for the valid issuance and sale of the Debentures to the Initial Purchasers as contemplated by this Agreement; (xi) Neither the offer, sale or ~~interference~~ delivery of the Debentures, nor the issuance of Common Stock upon conversion of the Debentures in accordance with ~~their respective businesses~~ the terms of the Debentures, nor the execution, delivery or ~~properties from fire~~performance by the Company of this Agreement, ~~flood~~the Registration Rights Agreement or the Indenture, ~~hurricane~~the execution, ~~accident~~ delivery or performance of the Guarantee Agreement by the Guarantors, nor compliance by the Company and the Guarantors with the provisions hereof or thereof, nor consummation by the Company and the Guarantors of the transactions contemplated hereby or thereby, conflicts or will conflict with or constitutes or will constitute a breach of, or a default under the certificate or articles of incorporation or bylaws or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations organizational documents of the Company or any of the Subsidiaries or any agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective properties is bound which is material to the Company and its ~~subsidiaries,~~ Subsidiaries taken as a ~~whole~~whole and that is an exhibit to any Incorporated Document, ~~except~~ or to the knowledge of such counsel will result in ~~each case as described in~~ the creation or ~~contemplated by the Final Memorandum (exclusive~~ imposition of any ~~amendment~~ lien, charge or ~~supplement thereto). (e) Subsequent to~~ encumbrance upon any property or assets of the ~~execution and delivery~~ Company or any of ~~this Agreement and prior to~~ the ~~Closing Date, there shall not have occurred any downgrading~~Subsidiaries, nor ~~shall~~ will any ~~notice have been given~~ such action result in any violation of any ~~intended~~ existing law, or ~~potential downgrading or of~~ any ~~review for a possible change that does not indicate the direction of the possible change~~regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws and, in the ~~rating accorded~~ case of the Registration Rights Agreement, the Act, the Exchange Act and the 1939 Act), judgment, injunction, order or decree known to such counsel, and applicable to the Company, the Subsidiaries or any of their respective properties; (xii) To the knowledge of such counsel, (A) there are no legal or governmental proceedings pending or threatened against the Company or any of the ~~Company’s securities by~~ Subsidiaries, or to which the Company or any ~~“nationally recognized statistical rating organization”~~of the Subsidiaries, ~~as such term is defined for purposes~~ or any of ~~Rule 436(g)(2)~~ their property, are subject, which are of the type that would be required to be described in the Offering Memorandum if it were a prospectus included in a registration statement on Form S-3 under the ~~Act.~~Act or in any of the Incorporated Documents but are not so described as required and (B) there are no agreements, contracts, indentures, leases or other instruments, that are of the type that would be required to be described in the Offering Memorandum if it were a prospectus included in a registration statement on Form S-3 under the Act or in any of the Incorporated Documents but are not so described as required, or that are required to be filed as an exhibit to any of the Incorporated Documents that are not so filed as required; (fxiii) ~~The~~ No registration of the Debentures under the Act nor qualification of the Indenture ~~shall have been executed and delivered by all~~ or the ~~parties thereto. (g) On~~ Guarantees under the ~~Closing Date,~~ 1939 Act is required for the sale of the Debentures to the Initial Purchasers ~~shall have received~~ as contemplated in this Agreement or for the ~~Registration Rights Agreement executed~~ Exempt Resales (assuming (A) that all representations and warranties made by ~~the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date,~~ the Initial Purchasers and ~~counsel for~~ the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to Company in this Agreement ~~will comply with~~ and in the ~~provisions hereof only if they~~ Offering Memorandum are ~~satisfactory in all material respects~~ true, correct and accurate (including but not limited to the representations by the Initial Purchasers and ~~counsel for~~ the ~~Initial Purchasers. The~~ Company ~~shall furnish to~~ regarding the ~~Initial Purchasers such conformed copies~~ absence of ~~such opinions, certificates, letters, and documents~~ general solicitation in ~~such quantities as the Initial Purchasers shall reasonably request.~~connection with the

Appears in 1 contract

Sources: Purchase Agreement (NCS Healthcare Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers to purchase and pay for the Notes shall,~~ Purchaser hereunder will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy ~~of the representations and warranties of the Company contained herein~~ as of the date hereof and as of ~~each~~ the Closing Date, ~~as if made on~~ in all material respects, of the representations and as warranties of ~~each Closing Date~~the Retention Holder and the Issuer herein, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~performance, ~~to the performance~~ in all material respects, by the ~~Company~~ Retention Holder and the Issuer of ~~its covenants and agreements~~ their respective obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) On The Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the documents required to be delivered pursuant to the Indenture in respect of the Collateral Obligations shall have been delivered to the Custodian pursuant to and as required by the Transaction Documents. (b) The Initial Purchaser shall have received (i) a certificate, dated as of the Closing Date, of a Responsible Officer of the ~~Initial Purchasers shall have received~~ Issuer and the Retention Holder, to the effect that such Responsible Officer has carefully examined this Agreement, the Final Offering Circular and the Transaction Documents and that, to the best of such Responsible Officer’s knowledge: (A) since the date information is given in the Preliminary Offering Circular, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Retention Holder or the Issuer whether or not arising in the ordinary course of business, or the ability of the Retention Holder or the Issuer to perform its obligations hereunder or under the Transaction Documents to which it is a ~~legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP~~party or in the characteristics of the Collateral Obligations, ~~counsel for~~ except as contemplated by the ~~Company~~Final Offering Circular, ~~dated~~ (B) each of the Retention Holder and the Issuer has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the other Transaction Documents to which it is a party, at or prior to the Closing Date, (C) the representations and warranties of the Retention Holder and the Issuer herein and in the other Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (D) nothing has come to the ~~effect that: (i)~~ attention of such ~~counsel has no reason~~ Responsible Officer that would lead such Responsible Officer to believe that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum~~Time of Sale Information, as of ~~its date or~~ the ~~date~~ Time of ~~such opinion~~Sale, ~~included or includes~~ contained any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (ii) a certificate, dated as of the Closing Date, of a Responsible Officer of the Collateral Manager to the effect that such Responsible Officer has carefully examined the Final Offering Circular and that, to the best of such Responsible Officer’s knowledge, nothing has come to the attention of such Responsible Officer that would lead such Responsible Officer to believe that the “Collateral Manager Information” (as defined in the Final Offering Circular), as of the date of the Final Offering Circular and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (i) The Class A Notes shall have been rated no less than “AAA(sf)” by S&P Global Ratings (“S&P”) and (ii) the ~~Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ Class B Notes shall have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandumrated no less than “AA(sf)” by S&P, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, ratings shall not have been ~~reviewed by such counsel~~ rescinded, and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement no public announcement shall have been ~~duly authorized~~ made by ~~all necessary corporate action~~ S&P that any ratings of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been ~~duly authorized by all necessary corporate action of the Company and~~placed under review. (d) The Initial Purchaser shall have received opinions, ~~on and as of~~ dated the Closing Date, ~~the Notes will have been duly executed and delivered by the Company and~~of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ~~assuming due authentication by the Trustee~~LLP, ~~will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as~~ counsel to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and ~~due authentication~~ the Collateral Administrator, in form and ~~delivery of~~ substance reasonably satisfactory to the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)Initial Purchaser. (~~viii~~e) The Initial Purchaser shall have received legal opinions of Winston & ▇▇▇▇▇▇ LLP, counsel to the ~~Company has all requisite corporate power and authority to execute~~Issuer, ~~deliver and perform its obligations under~~ the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, Retention Holder and the ~~performance by the Company of its obligations under~~Collateral Manager, ~~this Agreement~~(i) with respect to certain limited liability company matters and certain federal tax matters, ~~the Registration Rights Agreement, the Indenture~~ in form and ~~the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes~~ substance satisfactory to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation SPurchaser, (ii) ~~the accuracy of the Initial Purchasers’ representations~~ with respect to certain “non–consolidation” issues in ~~Section 8~~ form and ~~those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes~~ substance satisfactory to the Initial ~~Purchasers and the initial resale thereof~~ Purchaser and (iii) ~~the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as~~ with respect to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory “true sale” issues in form and ~~scope~~ substance satisfactory to ~~counsel for~~ the Initial ~~Purchasers, upon the~~ Purchaser. (f) The Initial Purchaser shall have received a legal opinion of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP~~. An opinion~~ , counsel to the Initial Purchaser and the Issuer, with respect to certain matters and certain “perfection issues” in form and substance satisfactory to the Initial Purchaser. (g) The Initial Purchaser shall have received written letters from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and Winston & ▇▇▇▇▇▇ LLP with respect to the Offering Circular in relation to Rule 10b-5 under the Securities Act, each addressed to the Initial Purchaser in form and substance satisfactory to the Initial Purchaser. (h) The Initial Purchaser shall have received legal opinions of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇~~▇▇▇▇~~ , ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ LLP~~, P.A., Delaware counsel ~~for~~ to the ~~Initial Purchasers, dated~~ Issuer and the ~~Closing Date,~~ Retention Holder with respect to certain ~~legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion~~Delaware laws, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Datein each case, in form and substance reasonably satisfactory to ~~counsel for~~ the Initial ~~Purchasers~~Purchaser. (di) The ~~Company~~ Issuer and the Retention Holder shall have furnished or caused to be furnished to the Initial ~~Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ Purchaser and its ~~Chief Financial Officer~~ counsel such further information, certificates and documents as the Initial Purchaser and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement, the other Transaction Documents and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial Purchaser and its counsel. (j) The Indenture, the Master Participation Agreement, the Master Loan Sale Agreement, the Collateral Management Agreement and all other documents incident hereto and to the other Transaction Documents shall be reasonably satisfactory in form and substance to the Initial Purchaser and its counsel. (k) The Purchasers shall have purchased or otherwise acquired the Direct Placement Notes directly from the Issuer. (l) The Issuer shall have executed and delivered one or more letters of representations with respect to the Notes in form reasonably satisfactory to the Initial ~~Purchasers~~ Purchaser. (m) The Closing Date occurs on or prior to January 22, 2025. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the ~~effect that: (i)~~ Initial Purchaser, unless in any case waived by the ~~representations~~ Initial Purchaser, this Agreement and ~~warranties~~ all of the ~~Company in this Agreement are true and correct as if made on and as of~~ Initial Purchaser’s obligations hereunder may be canceled by the ~~Closing Date; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied~~ Initial Purchaser at or prior to delivery of and payment for the ~~Closing Date; and (ii) subsequent~~ Purchased Notes. Notice of such cancellation shall be given to the ~~respective dates as of which information is given~~ Issuer and the Retention Holder in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancewriting, or ~~from any labor dispute~~ by telephone or ~~any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change~~ facsimile confirmed in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)writing. (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Sources: Purchase Agreement (Stepstone Private Credit Fund LLC)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ ------------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the ~~Notes shall,~~ Securities shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the ~~representations~~ rep- resentations and warranties of made herein on the ~~Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements~~ part of the Company~~’s officers made pursuant to the provisions hereof~~, to the performance by the Company of its ~~covenants and agreements~~ obligations to be performed hereunder prior to the Closing Date, and to the following ~~additional~~ conditions: ~~(a) On~~ a. The Company shall have furnished to the ~~Closing Date~~Initial Purchaser the opinion of , the ~~Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for~~ Counsel of ----------------- the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (ii) the Company ~~and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been~~ is a corporation duly organized and ~~are~~ validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions of incorporation~~ Wisconsin and ~~are~~ has due corporate power and authority to own its properties and conduct its business as described in the Offering Memorandum, and is duly qualified to ~~transact business as foreign corporations and~~ conduct in the businesses in ---------- which it is engaged in those States, which are the only States in ~~good standing under the laws of all other jurisdictions where such counsel has been advised that the failure~~ which it is required to be so ~~qualified would amount to a material liability or disability to~~ qualified; (ii) the Company ~~and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have~~ has full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and execute the Indenture and to ~~carry out all~~ issue the ~~terms~~ Securities thereunder, and ~~provisions hereof~~ the Indenture has been duly authorized, executed and ~~thereof and of the Notes to be carried out~~ delivered by ~~it; all of the issued and outstanding shares of capital stock of each of~~ the Company~~’s significant subsidiaries~~, ~~except as otherwise set forth in the Final Memorandum, are owned beneficially~~ and constitutes a valid and legally binding instrument by the Company ~~free and clear of any perfected security interests or, to~~ enforceable against the ~~best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments~~Company in accordance with its terms; (iii) the ~~statements set forth under~~ Securities and the ~~heading “Description of Notes” in~~ Indenture have been duly authorized, executed and issued by the ~~Final Memorandum~~Company and, ~~insofar as such statements purport to summarize certain provisions~~ assuming due authentication thereof by the Trustee and upon payment for and delivery of the ~~Notes~~ Securities in accordance with the terms of this Agreement, they will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the ~~execution~~ Company has full power and ~~delivery of~~ authority to execute this Agreement ~~have been duly authorized by all necessary corporate action of the Company~~ and ~~the~~ this Agreement has been duly authorized, executed and delivered by the Company; (v) an appropriate order or orders of the Commission under the Public Utility Holding Company Act of 1935 authorizing the issuance and sale of the Securities is in effect on the Closing Date and no further approval, authorization, consent or order of any other commission or other governmental authority (other than under state securities or blue sky laws, as to which such counsel are not called upon to express an opinion) is required for the issuance and sale of the Securities; (vi) the execution and delivery of the ~~Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee)~~Indenture, the ~~Indenture will be a legal~~Securities and this Agreement, ~~valid~~ and ~~binding agreement~~ the fulfillment of the ~~Company, enforceable against the Company in accordance with its~~ terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on thereof and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized hereof by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach ~~or violation~~ of any of the terms ~~and~~ or provisions of, or constitute a default ~~under~~under any provision of, the Company's articles of incorporation or by-laws or any indenture, mortgage, deed of ~~trust, lease~~ trust or other ~~material~~ agreement or instrument, ~~known to~~ of which such ~~counsel~~counsel has knowledge, to which the Company ~~or any of its significant subsidiaries~~ is now a party ~~or by which~~ or, to the ~~Company or~~ best of such counsel's knowledge, any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or ~~other~~ governmental ~~authority~~ agency or ~~any arbitrator known to such counsel and applicable to~~ body having jurisdiction over the Company or any of its ~~significant subsidiaries~~activities or properties; (vii) the provisions of the Securities and the Indenture conform in all material respects as to legal matters to the statements concerning them contained in the Offering Memorandum under " " and -------------- " "; ---------------------------------------- (viii) the franchises, permits and licenses under which the Company operates in the States of Wisconsin, and are adequate to permit the Company -------- ----- to engage in the businesses which it presently conducts in those States and do not contain any unduly burdensome provisions; in those municipalities where the Company operates without franchises or where expired franchises have not been renewed, the lack of such franchises does not materially affect the Company's operations in such municipalities and no actions or proceedings are pending or, to such counsel's knowledge, threatened by such municipalities which would materially affect the Company's operations; (ix) it is not necessary in connection with the offer, sale and delivery of the Securities to you and (assuming such offer, sale and delivery are made in compliance with the provisions of the Purchase Agreement and in the manner contemplated by the Offering Memorandum) to each subsequent purchaser to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended; and (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which each document filed by the Company or any of its subsidiaries ~~is a party or to which~~ with the ~~property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus~~ Securities and Exchange Commission ("Commission") pursuant to the ~~Act that are not described~~ Exchange Act, and incorporated by reference in the ~~Final~~ Offering Memorandum ~~or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant~~ (except as to the ~~Act that are~~ financial statements and schedules and other financial and statistical data contained therein, as to which they need not ~~described or incorporated in~~ express any belief), at the ~~Final Memorandum. (xii) commencing~~ time it was filed with the ~~Company’s taxable year ended December 31~~Commission, ~~1998, the Company was organized and has operated~~ complied as to form in ~~conformity~~ all material respects with the ~~requirements for qualification as a real estate investment trust (“REIT”) under the Code,~~ Exchange Act and the ~~Company’s present~~ applicable instructions, rules and ~~proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act~~ regulations of the ~~Notes is required~~ Commission thereunder. Such counsel's opinion set forth in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S, paragraphs (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) above may be subject to the ~~due~~ qualifications that the enforceability of the Company's obligations under the Indenture and the Securities may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditor's rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing. Such opinion shall also state that such counsel has no knowledge of any litigation, pending or threatened, which challenges the validity of the Securities, the Indenture, or this Agreement, or which seeks to enjoin the performance of the Company's obligations thereunder or which might have a material adverse effect on the business, properties or financial condition of the Company except as disclosed in or contemplated by the ~~Initial Purchasers of the agreements set forth in Section 8 hereof~~Offering Memorandum. In rendering ~~any~~ such opinion, such counsel may ~~rely,~~ rely as to factual matters ~~of fact, to the extent such counsel deems proper, on~~ upon certificates ~~of responsible officers~~ or written statements from others or other appropriate representatives of the Company or upon certificates of public officials. In such opinion, such counsel may state that while such counsel has examined the Offering Memorandum, such counsel necessarily assumes the correctness and ~~public officials and~~completeness of the statements made and information included therein and takes no responsibility therefor, except insofar as such statements relate to ~~matters involving~~ such counsel and as set forth in paragraph (vii) above. Such counsel's opinion may further state that it is addressed to the ~~application of laws of~~ Initial Purchasers and is rendered solely for their benefit and may not be relied upon in any ~~jurisdiction~~ manner by any other person (other than to ----------------------- the ~~State of New York or~~ extent stated in its opinion to the ~~United States or the General Corporation Law~~ Initial Purchasers as of the ~~State of Delaware~~Closing Date) without such counsel's prior written consent. b. The Initial Purchasers shall have received from , ~~to the extent satisfactory in form and scope to~~ counsel for the Initial Purchasers, ~~upon the~~ such ------------ opinion of ▇▇▇▇▇▇▇ LLP. An opinion of ▇▇▇▇▇▇▇ LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasersopinions, dated the Closing Date, with respect to ~~certain legal matters relating to this Agreement~~ the issuance and ~~such~~ sale of the Securities, the Indenture, the Offering Memorandum (together with any supplement thereto) and other related matters as the Initial ~~Purchasers~~ Purchaser may reasonably require~~. In rendering such opinion~~, ~~▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP~~ and the Company shall have ~~received and may rely upon~~ furnished to such ~~certificates and other~~ counsel such documents ~~and information~~ as ~~it may reasonably~~ they request for the purpose of enabling them to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) c. The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers ~~at the Closing~~ a certificate of ~~its~~ the Company, signed by the Chairman of the ~~Board~~Board or the President and the principal financial or accounting officer of the Company, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to~~ dated the ~~Initial Purchasers~~ Closing Date, to the effect that the signers of such certificate have carefully examined the Offering Memorandum, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~as if made~~ in all material respects on and as of the Closing ~~Date;~~ Date with the same effect as if made on the Closing Date and the Company has ~~performed~~ complied with all ~~covenants and~~ the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) ~~subsequent~~ since the date of the most recent financial statements included in the Offering Memorandum (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any supplement thereto). d. At the Closing Date, , independent ---------------- accountants shall have furnished to the ~~respective~~ Initial Purchasers a letter or letters, dated as of the Closing Date, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants' " comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Offering Memorandum. e. Subsequent to the date and time when this Agreement is executed and delivered by the parties hereto or, if earlier, the dates as of which information is given in the ~~Final Memorandum~~ Offering Memorandum, there shall not have been (~~exclusive~~ i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 8 or (ii) any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancechange, or ~~from~~ any ~~labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or~~ development involving a prospective ~~materially adverse~~ change, in or affecting the ~~condition (financial~~ business or ~~otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ properties of the Company the effect of which is, in the judgment of the Initial Purchasers, so material and adverse as to make it impractical or ~~any~~ inadvisable to proceed with the offering or delivery of ~~its subsidiaries, taken~~ the Securities as ~~a whole, except in each case as described in or~~ contemplated by the ~~Final Memorandum (exclusive of any amendment or supplement thereto)~~Offering Memorandum. ~~(e) Subsequent to the execution and delivery of this Agreement and prior~~ f. Prior to the Closing Date, ~~there~~ the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request. If any of the conditions specified in this Section 8 shall not have ~~occurred any downgrading, nor shall any notice have~~ been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers and counsel for the Initial Purchasers~~. The Company shall furnish to~~ , this Agreement and all obligations of the Initial Purchasers ~~such conformed copies~~ hereunder may be canceled at, or at any time prior to, the Closing Date by the Initial Purchasers. Notice of such ~~opinions, certificates, letters, and documents~~ cancellation shall be given to the Company in ~~such quantities as the Initial Purchasers shall reasonably request~~writing or by telephone or electronic transmittal confirmed in writing.

Appears in 1 contract

Sources: Purchase Agreement (Interstate Energy Corp)

Common use of Conditions of the Initial Purchasers’ Obligations Clause in Contracts