Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase and pay for the Securities is subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser: (i) The Initial Purchaser shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters. (ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law. (iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser. (iv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date. (v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum. (vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents. (vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading. (viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that: a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date. b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents. c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading. d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum. e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture). (ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement. (x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them. (xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum. (xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined. (xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date. (xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date. (xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 2 contracts
Sources: Purchase Agreement (Affinity Group Inc), Purchase Agreement (Affinity Group Holding, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion opinions, dated as of counsel the Closing Date and addressed to the Issuers Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); ▇▇▇▇▇▇ and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Maltese law); Stroeter, ▇▇▇▇▇▇▇ & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchaser Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ , in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiid) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ive) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating subsequent to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final such Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of businessaudited), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendmentsevent or development, alterationsand no information shall have become known, modifications that, individually or waivers of any provision thereof since in the date of this Agreementaggregate, has or would be reasonably likely to have a Material Adverse Effect.
(xf) All proceedings taken in connection with the issuance The sale of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There hereunder shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(gbe enjoined (temporarily or permanently) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after on the Closing Date.
(xivg) On Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or before other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the Indenture case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be executed signed by the Issuers and the Trustee and such agreement one Authorized Person who shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished managing director of such Issuer), to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.effect that:
Appears in 2 contracts
Sources: Purchase Agreement (Bluewater Offshore Production Systems Usa Inc), Purchase Agreement (Bluewater Offshore Production Systems Usa Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase and pay for the Securities Firm Notes on the Closing Date and the Optional Notes on the Additional Closing Date, if any, is subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers Company of their respective its covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
(i) The Initial Purchaser shall have received an opinion of counsel to the Issuers Company in form and substance satisfactory to the Initial Purchaser and Cahill Gordon & Reindel, counsel to the Initial Purchaser, d▇▇▇▇ ▇▇▇ ▇▇▇▇ing ▇▇▇▇, and again on the Additional Closing Date, if any, of Troutman Sanders LLP, substantially in the form of Exhibit A ▇▇▇▇▇▇. ▇▇ & ▇▇▇▇ering such opinion, Troutman Sanders LLP shall have received and may rely upon s▇▇▇ ▇▇▇▇i▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇▇ LLPReindel, counsel to the Initial Purchaser, as they may reasonably request a▇ ▇▇▇▇ ▇▇▇ ▇▇asonably ▇equest to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, and again on the Additional Closing Date, if any, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇▇ LLPReindel, counsel to the Initial Purchaser, with respect to the sufficiency ▇▇▇▇▇▇▇ ▇o t▇▇ ▇▇▇▇iciency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇Cahill Gordon & Reindel shall have received and may rely upo▇ ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇ica▇▇▇ LLP shall have received and may rely upon such certificates and ▇▇▇ other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇▇ LLP Reindel may state that their opinion is limited to matters of New York▇▇▇▇▇▇s o▇ ▇▇▇ ▇ork, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated On the date hereof of this Agreement and on the Closing Date and (b) from again on the Chief Financial Officer and Comptroller Additional Closing Date, if any, Ernst & Young LLP shall have furnished to the Initial Purchaser, at the request of the Company, a letter, dated the date hereof, relating to the financial statements respective dates of delivery thereof and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser Purchaser, containing statements and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel information of the type customarily included in accountants' "comfort letters" to underwriters with respect to the Initial Purchaserfinancial statements and certain financial information contained or incorporated by reference in the Final Circular; provided, that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use a "cutoff date no more than three business days prior to such Closing Date or such Additional Closing Date, as the case may be.
(iv) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the Closing Date, and again on the Additional Closing Date, if any; the Issuers Company shall have complied in all material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date, or the Additional Closing Date, as the case may be.
(v) There Subsequent to the execution and delivery of this Agreement and since the date of the most recent financial statements in the Final Circular (exclusive of any amendment or supplement thereto after the date hereof) (a) no event or condition of a type described in Section 2(c) hereof shall have occurred or shall exist, which event or condition is not described in the Circular (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Initial Purchaser makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement and the Circular; (b) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the capital stock rating accorded any securities of the Company or any of its Subsidiaries by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and (c) there shall not have occurred any event or development relating to or involving any of the Company or the Subsidiaries or any material increase in of the consolidated short-term officers or long-term debt directors of the Company from or the Subsidiaries that set forth or contemplated makes any statement made in the Final Memorandum and Circular untrue or that, in the opinion of the Company and its counsel or the Subsidiaries shall not have Initial Purchaser and its counsel, requires the making of any liabilities addition to or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected change in the Final MemorandumCircular in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(vi) None of the issuance and sale of the Securities Notes pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers Company or against the Initial Purchaser relating to the issuance of the Securities Notes or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement Agreement, the Final Circular or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers Additional Closing Date, if any, a certificate of the chief financial officer of the Company and one additional senior executive officer of the Company who is satisfactory to the Initial Purchaser (a) confirming that such officers have carefully reviewed the Final Circular and, to the best knowledge of such officers, the representation of the Company set forth in Section 2(a) hereof is true and correct, (b) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company has complied in all material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to such Closing Date and Additional Closing Date, (c) to the effect set forth in paragraphs (iv), (v) and (vi) of this Section 7; and (d) confirming that, at the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement , or the Final Memorandum and Additional Closing Date, as the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal actioncase may be, orderand, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, Agreement or the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ixviii) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xix) All proceedings taken in connection with the issuance of the Securities Notes and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xix) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final MemorandumCircular.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixi) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xvxii) The Issuers Company shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested.
(xiii) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Notes; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Notes.
(xiv) The Initial Purchaser shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the Company and its Significant Subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Initial Purchaser may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(xv) The "lock-up" agreements, each substantially in the form of Exhibit B hereto, between the Initial Purchaser and each of the shareholders, officers and directors of the Company listed on Exhibit B-l hereto relating to sales and certain other dispositions of shares of Stock or certain other securities, delivered to the Initial Purchaser as of the date hereof, shall be in full force and effect on the Closing Date or the Additional Closing Date, as the case may be. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers Company shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Arris Group Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation several ------------------------------------------------- obligations of the Initial Purchaser Purchasers to purchase and pay for the Securities is Notes are subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserPurchasers:
(i) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, dated the Closing Date, of ▇▇▇▇▇▇, each of (i) ▇▇▇▇▇▇▇▇ and & ▇▇▇▇▇▇ P.A., counsel to the Issuers, substantially in the form of Exhibit B C hereto. In rendering such opinion, ▇▇▇▇▇▇(ii) Weil, ▇▇Gotshal & ▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. LLP, counsel --------- to Old Muzak, substantially in the form of Exhibit D hereto. In rendering --------- such opinions, each such counsel shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser Purchasers shall have received (a) from Ernst PricewaterhouseCoopers LLP and Deloitte & Young Touche LLP, independent public accountants for the IssuersCompany and Old Muzak, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers.
(iv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities Notes pursuant to this Agreement or any of the Transactions or any of the other transactions contemplated by any of the other Basic Offering Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser Purchasers relating to the issuance of the Securities Notes or the Initial Purchaser's Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Offering Documents or the Transaction Documents.
(viivi) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company Issuers, the Subsidiaries, Old Muzak and the Muzak Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial PurchaserPurchasers, would materially adversely affect the market for the SecuritiesNotes, or (ii) any event or development relating to or involving any of the Company Issuers, the Subsidiaries, Old Muzak or the Subsidiaries Muzak Subsidiaries, or any of the their respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser Purchasers and its their counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viiivii) The Initial Purchaser Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Companyeach Issuer (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Issuers such Issuer set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have such Issuer has complied in all material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities Notes pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or or, to such officers' knowledge, threatened against any of the Issuers such Issuer relating to the issuance of the Securities Notes or the Initial Purchaser's Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Offering Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company Issuers, the Subsidiaries, Old Muzak and the Muzak Subsidiaries, taken as a whole, not contemplated by the Final MemorandumMemorandum that would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving any of the Company or Issuers, the Subsidiaries, Old Muzak and the Muzak Subsidiaries or any of the their respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ixviii) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement. On the Closing Date, the New Credit Agreement shall provide for revolving credit and term loan borrowings in such amounts as are sufficient to consummate the Transactions to be consummated on the Closing Date and substantially as described in the Final Memorandum.
(ix) On the Closing Date, the Company shall have received not less than $115 million in gross proceeds from the Senior Subordinated Notes Offering.
(x) The Company shall have received cash equity financing (including the proceeds of the Offering) pursuant to the Equity Contribution in such an amount as is sufficient to consummate the Transactions to be consummated on the Closing Date, substantially as described in the Final Memorandum.
(xi) The Certificate of Merger with respect to the Merger shall have been filed with the Secretary of State of the State of Delaware and shall have become effective.
(xii) Each of the Proposed Amendments to the Muzak Notes shall have been approved by the requisite percentage of holders of Muzak Notes; simultaneously with the closing of the sale of the Notes by the Issuers, the Issuers shall have accepted for payment and have instructed the depositary with respect thereto to pay to the trustee under the Muzak Indenture the purchase price for all Muzak Notes properly tendered pursuant to the Tender Offer. The Supplemental Indenture shall have been executed by Old Muzak and the trustee under the Muzak Indenture and the terms of the Muzak Indenture shall be as modified by such Supplemental Indenture.
(xiii) All proceedings taken in connection with the issuance of the Securities Notes and the transactions contemplated by this Agreement, the other Basic Offering Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Initial Purchaser Purchasers and counsel to the Initial Purchaser Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xixiv) The Company Issuers shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xiixv) There On the Closing Date, the Initial Purchasers shall have received a letter, dated the Closing Date, from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Inc. with respect to the solvency of the Issuers as of the Effective Time in form, scope and substance reasonably satisfactory to the Initial Purchasers.
(xvi) Since the date of this Agreement, there shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of Holdings, the CompanyCompany or Old Muzak, or (B) it is reviewing its rating assigned to any debt securities of Holdings, the Company or Muzak with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixvii) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xvxviii) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser Purchasers such further certificates and documents as the Initial Purchaser Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Issuers shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Notes. The obligation obligations of the Initial Purchaser Purchasers to purchase and pay for the Securities is Notes are subject to the accuracy of the representations and warranties contained hereinabsence from any certificates, opinions, written statements or letters furnished to the performance by the Issuers Initial Purchasers pursuant to this Section 7 of their respective covenants and agreements hereunder any misstatement or omission and to the following additional conditions unless waived in writing by the Initial PurchaserPurchasers:
(iA) The Initial Purchaser Purchasers shall have received an opinion opinion, in substantially the form of Exhibit A attached hereto, dated the Closing Date, of ▇▇▇▇▇▇ Godward Kronish LLP, counsel to the Issuers Company.
(B) The Initial Purchasers shall have received a comfort letter, in form and substance satisfactory to the Initial Purchaser Purchasers, in their sole discretion, dated December 12, 2006, of BDO ▇▇▇▇▇▇▇, LLP, registered independent auditor of the Company.
(C) With respect to the comfort letter of BDO ▇▇▇▇▇▇▇, LLP referred to in the preceding subsection, the Initial Purchasers shall have received a “bring-down” letter of BDO ▇▇▇▇▇▇▇, LLP, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, dated the Closing Date.
(D) The Initial Purchasers shall have received a comfort letter, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, dated December 11, 2006, of Ernst & Young LLP, registered independent auditor of Jazz.
(E) With respect to the comfort letter of Ernst & Young LLP referred to in the preceding subsection, the Initial Purchasers shall have received a “bring-down” letter of Ernst & Young LLP, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, dated the Closing Date.
(F) The Initial Purchasers shall have received an opinion, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such mattersPurchasers.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser.
(ivG) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date; , and the Issuers Company shall have complied in all material respects with all covenants, agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vH) There shall not have been any change The representations and warranties made in the capital stock Merger Agreement by each of the Company or the Subsidiaries or any material increase and Jazz shall be true and complete (in the consolidated short-term case of representations and warranties qualified as to materiality) or long-term debt true and correct in all material respects (in the case of all other representations and warranties) on and as of the Company from Closing Date (except for any representation or warranty that set forth speaks as of a specific date, which representation or contemplated warranty shall be true and complete in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course all material respects as of businesssuch date), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(viI) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by this Agreement or any of the other Basic Documents or the Transaction Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against any of the Issuers Company or against the Initial Purchaser Purchasers relating to the issuance or the trading of the Securities or the Initial Purchaser's Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, Offering Memorandum or the other Basic Documents or the Transaction Offering Documents.
(viiJ) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof)Offering Memorandum, there shall not have occurred (i) any change, or any development involving a prospective changechange in, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects properties or results of operations of the Company and the Subsidiariesof, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries Subsidiary or any of the officers or directors of the Company or the Subsidiaries that makes any statement made Jazz not disclosed in the Final Offering Memorandum untrue or thatthat is, in the opinion judgment of the Issuers Initial Purchasers, so material and their counsel adverse as to make it impracticable or inadvisable to proceed with the Initial Purchaser Offering on the terms and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required manner contemplated by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleadingOffering Memorandum.
(viiiK) The Initial Purchaser Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer Chairman and Chief Executive Officer and the chief financial officer President, Chief Operating Officer, Chief Financial Officer and Secretary of the Company, to the effect thatthat to the best of their knowledge:
a. (i) All of the representations and warranties of the Issuers Company set forth in this Agreement are true and correct (in the case of representations and warranties qualified as if to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date, and all covenants agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with, in all material respects.
(ii) The representations and warranties made by the Company and Jazz in the Merger Agreement are true and correct (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date (except for any such representation or warranty that speaks as of a specific date, which representation or warranty is true and the Issuers have complied complete in all material respects with as of such date).
(iii) No event has occurred and is continuing, as a result of which the Offering Memorandum including all agreements exhibits and satisfied all conditions on their part attachments thereto would contain an untrue statement of a material fact or omit to state a material fact required to be performed stated therein or satisfied necessary to make the statements therein, in the light of the circumstances existing at or prior the time it is delivered to the Closing DateInitial Purchasers, not misleading.
b. (iv) The issuance and sale of the Securities Notes pursuant to this Agreement or and the Final Offering Memorandum and the consummation of the transactions contemplated by the Transaction Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or or, to such officers’ knowledge, threatened against any of the Issuers Company relating to the issuance or the trading of the Securities or the Initial Purchaser's Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, Offering Memorandum or the other Basic Documents or the Transaction Offering Documents.
c. (v) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof)Offering Memorandum, there has not occurred (i1) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects properties or results of operations of the Company and or the Subsidiaries, taken as a wholeSubsidiary, not contemplated by the Final Offering Memorandum, except for any change or prospective change that would not reasonably be expected to result in a Material Adverse Effect upon the Company, (2) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties or results of operations of Jazz, not contemplated by the Offering Memorandum, except for any change or prospective change that would not reasonably be expected to result in a Material Adverse Effect upon Jazz, or (ii3) any event or development relating to or involving any of the Company or the Subsidiaries Subsidiary or any of the their respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Offering Memorandum untrue in any material respect or that requires the making of any addition to or change in the Final Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. vi) At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Offering Documents and the Transaction Documents, there exists shall exist no Default or Event of Default (as defined in the Indenture).
(ixL) Each of the Transaction Offering Documents and each other agreement or instrument executed in connection with the Transactions transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xM) The Initial Purchasers shall have confirmed sales to the Subsequent Purchasers agreeing to fund a total of $145,000,000, none of the Subsequent Purchasers shall have actually made or threatened to make any amendments, alterations, modifications, withdrawals, waivers or breaches with respect to its commitment to purchase Notes, and the Initial Purchasers shall have no reasonable good faith belief that such commitments or purchases will not be funded.
(N) All proceedings taken in connection with the issuance of the Securities Notes and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Initial Purchaser Purchasers and counsel to the Initial Purchaser Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xiO) The Company Notes shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandumbe eligible for clearance on DTC.
(xiiP) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before At the Closing Date, the Company and the Trustee shall have entered into the Indenture, in form and substance satisfactory to the Initial Purchaser Purchasers, in their sole discretion, and the Initial Purchasers shall have received counterparts, dated the Registration Rights Agreement Closing Date and executed by each of the Issuers parties thereto and such agreement the Notes shall be in full force have been duly executed and effect at all times from delivered by the Company and after duly authenticated by the Closing DateTrustee.
(xivQ) On or before At the Closing Date, each of the Indenture shall be executed by Registration Rights Agreement, the Issuers Escrow Agreement, the Security Agreement and the Trustee Control Agreement shall have been executed and such agreement shall be in full force and effect at delivered by all times from and after the Closing Dateparties thereto.
(xvR) Except as disclosed in the Offering Memorandum, there are no pending or threatened legal or governmental proceedings to which the Company or the Subsidiary or Jazz is a party or of which any property of the Company or the Subsidiary is the subject, which, the Initial Purchasers believe, in their sole discretion, if determined adversely to the Company or the Subsidiary, would individually or in the aggregate have a Material Adverse Effect on the financial position or results of operations of the Company and the Subsidiary taken as a whole; and
(S) The Issuers Company shall have furnished or caused to be furnished to received Limited Waivers in the Initial Purchaser such further certificates and documents as form of Exhibit B hereto from the Initial Purchaser shall have reasonably requestedparties named therein. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities Firm Notes on the Closing Date and the Optional Notes on the Additional Closing Date, if any, is subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers Company of their respective its covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserPurchasers:
(i) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers Company in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, dated the Closing Date, and again on the Additional Closing Date, if any, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A.& Bird LLP, substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. & Bird LLP shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ & Bird LLP, may state that their opinion is limited to matters of Georgia, New York and federal law.
(ii) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Company in form and substance satisfactory to the Initial Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, dated the Closing Date, and again on the Additional Closing Date, if any, of the General Counsel of the Company, substantially in the form of Exhibit C hereto.
(iii) The Initial Purchasers shall have received an opinion, dated the Closing Date, and again on the Additional Closing Date, if any, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiiiv) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young PricewaterhouseCoopers LLP, independent public accountants for the IssuersCompany, "“comfort" ” letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyAdditional Closing Date, a letterif any, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivv) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct in all material respects as if made on and as of the Closing Date and the Additional Closing Date, if any; the Issuers Company shall have complied in all material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vvi) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Circular and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final MemorandumCircular.
(vivii) Subsequent to the execution and delivery of this Agreement and since the date of the most recent financial statements in the Final Circular (exclusive of any amendment or supplement thereto after the date hereof) (a) no Material Adverse Effect shall have occurred or shall exist, which event or condition is not described in the Final Circular (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Initial Purchasers makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement and the Final Circular and (b) there shall not have occurred any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement of a material fact untrue or omits to state a material fact in the Final Circular or that, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Final Circular in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) None of the issuance and sale of the Securities Notes pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers Company or against the Initial Purchaser Purchasers relating to the issuance of the Securities Notes or the Initial Purchaser's Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or Agreement, the Final Memorandum, the other Basic Documents Circular or the Transaction Documents.
(viiix) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum Circular (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by or disclosed in the Final Memorandum Circular that, in the opinion of the Initial PurchaserPurchasers, would materially adversely affect the market for the SecuritiesNotes, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries Subsidiaries, that makes any statement made of a material fact untrue or omits to state a material fact in the Final Memorandum untrue Circular or that, in the opinion of the Issuers Company and their its counsel or the Initial Purchaser Purchasers and its their counsel, requires the making of any addition to or change in the Final Memorandum Circular in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein therein, in the light of the circumstances under which they were made, not misleading.
(viiix) The Initial Purchaser Purchasers shall have received certificates, dated the Closing Date and the Additional Closing Date, if any, and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers Company set forth in this Agreement are true and correct in all material respects as if made on and as of the Closing Date and the Issuers have Company has complied in all material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities Notes pursuant to this Agreement or the Final Memorandum Circular and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers Company relating to the issuance of the Securities Notes or the Initial Purchaser's Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or Agreement, the Final Memorandum, the other Basic Documents Circular or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum Circular (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the its Subsidiaries, taken as a whole, not contemplated by or disclosed in the Final MemorandumCircular that would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the its Subsidiaries that makes any statement made of a material fact untrue or omits to state a material fact in the Final Memorandum untrue Circular or that requires the making of any addition to or change in the Final Memorandum Circular in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein therein, in the light of the circumstances under which they were made, not misleading.
d. There has not been any change in the capital stock of the Company or the its Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Circular and the Company and the its Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the its Subsidiaries, taken as a whole, other than those reflected in the Final MemorandumCircular.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and Agreement or the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ixxi) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Initial Purchaser Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xxii) All proceedings taken in connection with the issuance of the Securities Notes and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Initial Purchaser and counsel to the Initial Purchaser Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xixiii) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "“Use of Proceeds" ” in the Final MemorandumCircular.
(xiixiv) There shall not have been any announcement by any "“nationally recognized statistical rating organization," ” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixv) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement Agreement, substantially in the form attached as Exhibit A, executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xvxvi) The Issuers Company shall have furnished or caused to be furnished to the Initial Purchaser Purchasers such further certificates and documents as the Initial Purchaser Purchasers shall have reasonably requested.
(xvii) The Initial Purchaser shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the Company and the Subsidiaries listed on Schedule III in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Initial Purchasers may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(xviii) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Initial Purchasers and each of the executive officers and directors of the Company listed on Exhibit D-1 hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Initial Purchasers as of the date hereof, shall be in full force and effect on the Closing Date or the Additional Closing Date, as the case may be. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Notes and the Additional Closing Date, if any, for the Optional Notes. The obligation obligations of the Initial Purchaser to purchase and pay for the Securities is Notes are subject to the accuracy of the representations and warranties contained hereinabsence from any certificates, opinions, written statements or letters furnished to the performance by the Issuers Initial Purchaser pursuant to this Section 7 of their respective covenants and agreements hereunder any material misstatement and to the following additional conditions unless waived in writing by the Initial Purchaser:
(i) The Initial Purchaser shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇▇ Day, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A.counsel to the Company, substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. .
(ii) The Initial Purchaser shall have received and may rely upon such certificates and other documents and information, including one or more the opinions of local counsel reasonably acceptable in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser, each dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇, General Counsel of the Company, substantially in the form of Exhibit C hereto, and ▇▇▇▇▇▇▇ LLP▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, PC, Indiana counsel to the Initial PurchaserCompany, as they may reasonably request to pass upon such matterssubstantially in the form of Exhibit D hereto.
(iiiii) The Initial Purchaser shall have received an opinionopinion and a letter, each dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiiiv) The Initial Purchaser shall have received (a) from Ernst & Young PricewaterhouseCoopers LLP, independent public accountants auditors for the IssuersCompany, "a “comfort" letters ” letter dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser.
(ivv) The Prior to the date hereof, the Initial Purchaser shall have received from each of the officers and directors listed on Schedule 1 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit E hereto.
(vi) All of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers Company shall have complied with or performed in all material respects with all agreements or obligations and satisfied all conditions in each case on their its part to be complied with, performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vivii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issuedissued relating thereto; and there shall not have been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or threatened against any of the Issuers Company or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's ’s activities in connection therewith or any other transactions contemplated by this Agreement or the Final Offering Memorandum, or the other Basic Documents or the Transaction Offering Documents.
(viiviii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the its Subsidiaries, taken as a whole, not contemplated by the Final Offering Memorandum that(which for all purposes of this clause (i) and clause (ii) below shall be exclusive of any amendment or supplement thereto, including by the filing of any document under the Exchange Act, after the date hereof which the Initial Purchaser has reasonably disapproved) that is, in the opinion judgment of the Initial Purchaser, would materially adversely affect so material and adverse as to make it impracticable or inadvisable to proceed with the market for offering of the Securities, Securities on the terms and in the manner contemplated by the Offering Memorandum or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the Subsidiaries, or any of their respective officers or directors of the Company or the Subsidiaries directors, that makes any statement made in the Final Offering Memorandum untrue in any material respect or that, in the opinion of the Issuers Company and their its counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleadingmisleading in the light of the circumstances under which they were made.
(viiiix) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the CompanyCompany (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Issuers Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date, all agreements, conditions and obligations of the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part Company to be performed performed, satisfied or satisfied at complied with hereunder on or prior to the Closing DateDate have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities Notes pursuant to this Agreement or the Final Offering Memorandum and the consummation of the transactions contemplated by the Transaction Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or or, to such officers’ knowledge, threatened against any of the Issuers Company relating to the issuance of the Securities or the Initial Purchaser's ’s activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, Offering Memorandum or the other Basic Documents or the Transaction Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the its Subsidiaries, taken as a whole, not contemplated by the Final MemorandumOffering Memorandum (which for all purposes of this clause (i) and clause (ii) below shall be exclusive of any amendment or supplement thereto, including by the filing of any document under the Exchange Act, after the date hereof which the Initial Purchaser has reasonably disapproved) or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the Subsidiaries, or any of their respective officers or directors of the Company or the Subsidiaries directors, that makes any statement of a material fact made in the Final Offering Memorandum untrue or that requires the making of any addition to or change in the Final Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Offering Documents, there exists no Default or Event of Default (as each such term is defined in the Indenture).
(ixx) Each of the Transaction Offering Documents and each other agreement or instrument executed in connection with the Transactions transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof of this Agreement since the date of this Agreement (or, in the case of the Indenture, the Notes or the Registration Rights Agreement, the date thereof).
(xxi) All proceedings taken in connection with the issuance of the Securities Notes and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xixii) The Company Notes shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandumhave been approved for trading on The PORTAL Market.
(xiixiii) There Since the date of this Agreement, there shall not have been any announcement by any "“nationally recognized statistical rating organization," ” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, Company or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, implications or direction not determined.
(xiiixiv) On or before Since the date of this Agreement, there shall not have occurred any event described in clauses (i) through (v) of Section 12.
(xv) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, conformed as executed, thereof and the Registration Rights Agreement Notes shall have been duly executed and delivered by the Issuers Company and such agreement shall be in full force and effect at all times from and after duly authenticated by the Closing DateTrustee.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xvxvi) The Issuers Company shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers Company shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (CTS Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchaser Purchasers to purchase and pay for the Securities is Notes shall be subject to the accuracy of the representations and warranties contained hereinof the Company in Section 2 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Issuers Company of their respective its covenants and agreements hereunder and the consummation of the sale and purchase of the Notes and to the following additional conditions unless waived in writing by the Initial Purchaserconditions:
(ia) The Initial Purchaser shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of Hunton & ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to the effect set forth in Exhibit C hereto.
(b) The Initial PurchaserPurchasers shall have received an opinion, dated the Closing Date, of Counsel for the Initial Purchasers, with respect to the sufficiency issuance and sale of certain legal matters relating to this Agreement the Notes and such other related matters as the Initial Purchaser Purchasers may reasonably require, and the Company shall have furnished to such Counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such Counsel may rely as to certain matters of Virginia law upon the opinion of Hunton & ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP referred to in paragraph (a) above.
(c) The Initial Purchasers shall have received from both Deloitte & Touche LLP and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLPLLP letters dated, independent public accountants for the Issuersrespectively, "comfort" letters dated the date hereof and the Closing Date Date, in form and substance satisfactory to the Initial Purchasers, containing statements and information of the type ordinarily included in accountants’ comfort letters to underwriters and other placement agents with respect to the financial information included in and incorporated by reference into the Offering Memorandum.
(bd) from The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser.
(iv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock Treasurer of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of (i) the representations and warranties of the Issuers set forth Company in this Agreement are true and correct as if made on and as of the Closing Date Date; the General Disclosure Package and the Issuers have complied Final Offering Memorandum, as amended or supplemented as of the Closing Date, does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company has performed all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date.; and
b. The issuance (ii) subsequent to the date as of which information is given in the General Disclosure Package and sale of the Securities pursuant to this Agreement or the Final Memorandum and Offering Memorandum, neither the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily Company nor its subsidiaries has sustained any material loss or permanently) and no restraining order interference with their respective businesses or properties from fire, flood, hurricane, accident or other injunctive order has been issued calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any legal actionMaterial Adverse Effect, orderor any development involving a prospective Material Adverse Effect, decree except in each case as described in or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the General Disclosure Package and the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenturethereto).
(ixe) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance Subsequent to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effectdate hereof, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement decrease in the rating of any of the Company’s debt securities (including the Notes) by any "“nationally recognized statistical rating organization," ” (as defined for purposes of Rule 436(g) under the Securities Act, ) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that (A) it is downgrading its rating assigned to any debt securities does not indicate the direction of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determinedchange.
(xiiif) The Company shall have been advised by the National Association of Securities Dealers, Inc. that the Notes have been designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD relating to trading in the PORTAL Market.
(g) The Notes shall be eligible for clearance and settlement through the Depositary.
(h) On or before the Closing Date, the Initial Purchaser Purchasers and Counsel for the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and certificates, documents or other information as the Initial Purchaser shall they may have reasonably requestedrequested from the Company. All such opinions, certificates, letters, schedules, letters and documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to Counsel for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, letters and documents and instruments in such quantities as the Initial Purchaser Purchasers and Counsel for the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Alliance One International, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchaser Purchasers to purchase and pay for the Securities is Bonds shall be subject to the accuracy on the date hereof and on the Closing Date of the representations and warranties contained herein, to made herein on the performance part of the Funding Corporation and the Company and of any certificates furnished by the Issuers of their respective covenants and agreements hereunder Funding Corporation or the Company on the Closing Date and to the following additional conditions unless waived in writing by the Initial Purchaserconditions:
(ia) The At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order or orders of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser and from Wise Carter Child & Caraway, Professional Associ▇▇▇▇▇▇ ; ▇▇▇▇▇▇ en Reid & ▇▇▇▇▇▇▇ LLP; and Friday, counsel to the Initial Purchaser, dated the Closing Date, of ▇Eldredge & ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and , each as counsel to the Co▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ; ▇nd ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ n Reid & ▇▇▇▇▇▇▇ Priest LLP, as counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇Fund▇▇▇ ▇▇▇▇▇▇▇▇ LLPtion, addressed opinions, dated the Closing Date, substantially in the forms set forth in Exhibits A, B, C and D hereto, respectively, (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Initial Purchasers, and (ii) if the Offering Memorandum shall be supplemented after being furnished to the Initial Purchaser Purchasers for use in offering the Bonds and in form and substance reasonably satisfactory prior to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPClosing Date, counsel with changes therein to the Initial Purchaserreflect such supplementation.
(ivc) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of At the Closing Date; , the Issuers Initial Purchasers shall have complied received from Counsel for the Initial Purchasers an opinion, dated the Closing Date, substantially in all material respects the form set forth in Exhibit E hereto, with all agreements and satisfied all conditions on their part such changes therein as may be necessary to be performed or satisfied hereunder at or reflect any supplementation of the Offering Memorandum prior to the Closing Date.
(vd) There On or prior to the date this Purchase Agreement became effective, the Initial Purchasers shall have received from Deloitte & Touche LLP, the Company's independent certified public accountants (the "Accountants"), a letter dated the Closing Date and addressed to the Initial Purchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and incorporated by reference in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the applicable published rules and regulations thereunder; (iii) on the basis of performing the procedures specified by the AICPA for a review of interim financial information as described in SAS No. 100, Interim Financial Information, on the latest unaudited financial statements, if any, incorporated by reference in the Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2003 to a specified date not more than five days prior to the date of such letter, and inquiries of officers of the Company who have been responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (C) at the date of the latest available balance sheet read by the Accountants, and at a subsequent specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company or the Subsidiaries or any material Company, increase in the consolidated short-term or long-term debt of the Company from that Company, or decrease in its net assets or shareholder's equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long- term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth or contemplated in such letter, identifying the Final Memorandum same and specifying the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issuedamount thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of (D) for the Issuers or against period from the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the closing date of the most recent financial statements income statement incorporated by reference in the Final Offering Memorandum (exclusive to the closing date of any amendment or supplement thereto after the date hereof)latest available income statement read by the Accountants, there shall not were any decreases, as compared to the corresponding period in the preceding year, in operating revenues, operating income or net income, except in all instances for decreases which the Offering Memorandum discloses have occurred or may occur or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and
(iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company set forth in the Offering Memorandum, and set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement.
(e) At the Closing Date, the Initial Purchasers shall have received (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations certificates of the Company Funding Corporation and the SubsidiariesCompany, taken as a wholerespectively, not contemplated signed by the Final Memorandum thatPresident, in a Vice President, the opinion Treasurer or an Assistant Treasurer of each of the Initial PurchaserFunding Corporation and the Company, would materially adversely affect respectively, to the market for effect that (A) the Securitiesrepresentations and warranties of the Funding Corporation and the Company, as the case may be, contained herein are true and correct, and (B) each of the Funding Corporation and the Company has performed and complied with all agreements and conditions in this Purchase Agreement on its part to be performed or complied with at or prior to the Closing Date, (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificatescertificate, dated the Closing Date and signed by the chief executive officer and the chief financial officer President or a Vice President of the CompanyCompany that since the most recent date as of which information is given in the Offering Memorandum, to as it may then be amended or supplemented, there has not been any material adverse change in the effect that:
a. All business, property or financial condition of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued Company and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated material transaction entered into by the Final MemorandumCompany, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not other than transactions in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, in each case other than those reflected in the Final as referred to in, or contemplated by, such Offering Memorandum.
e. At , as it may then be amended or supplemented, and (iii) a certificate, dated the Closing Date and after giving effect signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of Entergy Corporation ("Entergy"), to the consummation effect that since the most recent date as of which information is given in the transactions contemplated by this AgreementOffering Memorandum, the other Basic Documents and the Transaction Documentsas it may then be amended or supplemented, there exists no Default or Event of Default (as defined has not been any material adverse change in the Indenture)business, property or financial condition of Entergy and its subsidiaries considered as a whole.
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion the opinion, dated as of counsel the Closing Date and addressed to the Issuers Initial Purchasers, of Mayer, Brown & Platt, counsel for the Company, in form and ▇▇▇▇▇anc▇ ▇▇▇isfa▇▇▇▇▇ to counsel for the Initial Purchasers, with respect to the matters provided for in Exhibit B hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon & Reindel, counsel for the Initial Purchasers, wi▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇o c▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇▇ LLP Reindel shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇cat▇▇ LLP▇▇▇ other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivd) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Issuers' officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated ; 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, and the Company and the Subsidiaries no information shall not have any liabilities become known, that, individually or obligations, contingent or otherwise (whether or not in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final MemorandumMaterial Adverse Effect.
(vie) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
(viif) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers 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 Issuers have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any no event or development relating to has occurred, and no information has become known, that, individually or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue aggregate, has or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition would be reasonably likely to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect; and
(viiiiii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder has not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiih) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivi) Concurrently with or prior to the issuance and sale of the Securities by the Issuers, the Company and the Guarantors shall have entered into the Senior Credit Agreement.
(j) The Securities shall have been approved by the NASD for trading in the Portal Market and shall be eligible for clearance and settlement through DTC. On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Issuers business, corporate, legal and financial affairs of the Company and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedIssuers. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Coinmach Corp)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, "Closing Date" shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligation obligations of the Initial Purchaser Purchasers to purchase and pay for the Securities is Notes are subject to the accuracy of the representations and warranties contained herein, absence from any certificates or opinions furnished to the performance by the Issuers Initial Purchasers pursuant to this Section 7 of their respective covenants and agreements hereunder any misstatement or omissions and to the following additional conditions unless waived in writing by the Initial PurchaserPurchasers:
(i) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A.Traurig, LLP, counsel to the Company, substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. .
(ii) The Initial Purchasers shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinionPurchasers, dated the Closing Date, of (i) Deacons, counsel to Synaptics Hong Kong Limited, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Higham, counsel to Synaptics (UK) Limited and (iii) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, counsel to Synaptics Holding GmbH, substantially in the form of Exhibit C hereto.
(iii) The Initial Purchasers shall have received an opinion of counsel in form previously delivered to the Initial Purchasers and in substance satisfactory to the Initial Purchasers and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, dated the Closing Date, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., intellectual property counsel to the Company.
(iv) Upon the request of the Initial Purchasers, the Initial Purchasers shall have received an opinion of counsel in form and substance satisfactory to the Initial Purchasers and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, dated the Closing Date, of Beresford & Co., intellectual property counsel to Synaptics (UK) Limited.
(v) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP .
(vi) The Initial Purchasers shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young KPMG LLP, independent public accountants for the IssuersCompany, a "comfort" letters letter dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivvii) The Initial Purchasers shall have received from Ernst & Young LLP, independent public accountants for the Company, a "comfort" letter dated the Closing Date, in the form of Exhibit D hereto.
(viii) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit E hereto.
(ix) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers Company shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vix) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or threatened against any of the Issuers Company or against the Initial Purchaser Purchasers relating to the issuance of the Securities or the Initial Purchaser's Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Final Offering Memorandum, or the other Basic Documents or the Transaction Offering Documents.
(viixi) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects properties or results of operations of the Company and or any of the Subsidiaries, taken as a whole, not contemplated by the Final Offering Memorandum thatthat is, in the opinion judgment of the Initial PurchaserPurchasers, would materially adversely affect so material and adverse as to make it impracticable or inadvisable to proceed with the market for offering of the SecuritiesSecurities on the terms and in the manner contemplated by the Offering Documents, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the Subsidiaries, or any of their respective officers or directors of the Company or the Subsidiaries directors, that makes any statement made in the Final Offering Memorandum untrue in any material respect or that, in the opinion of the Issuers Company and their its counsel or the Initial Purchaser Purchasers and its their counsel, requires require the making of any addition to or change in the Final Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viiixii) The Initial Purchaser Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the CompanyCompany (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Issuers Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part Company to be performed performed, satisfied or satisfied at complied with hereunder on or prior to the Closing DateDate have been duly performed, satisfied or complied with.
b. The issuance and sale of the Securities Notes pursuant to this Agreement or and the Final Offering Memorandum and the consummation of the transactions contemplated by the Transaction Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or or, to such officers' knowledge, threatened against any of the Issuers Company relating to the issuance of the Securities or the Initial Purchaser's Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, Offering Memorandum or the other Basic Documents or the Transaction Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any material change, or any development involving a prospective material change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects properties or results of operations of the Company and or any of the Subsidiaries, taken as a whole, not contemplated by the Final Offering Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the Subsidiaries, or any of their respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Offering Memorandum untrue in any material respect or that requires the making of any addition to or change in the Final Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Offering Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ixxiii) Each of the Transaction Offering Documents and each other agreement or instrument executed in connection with the Transactions transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xxiv) All proceedings taken in connection with the issuance of the Securities Notes and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Initial Purchaser Purchasers and counsel to the Initial Purchaser Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xixv) The Company Notes shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandumhave been approved for trading on The PORTAL Market.
(xiixvi) There Since the date of this Agreement, there shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixvii) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xvxviii) The Issuers Company shall have furnished or caused to be furnished to the Initial Purchaser Purchasers such further certificates and documents as the Initial Purchaser Purchasers shall have reasonably requested.
(xix) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Synaptics Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase and pay for the Securities is Notes shall, in its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser shall have received an opinion (i) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Locke Liddell & Sapp LLP, ▇▇▇▇se▇ ▇▇▇ ▇he Company, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, to the effect set forth in Exhibit A, (ii) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Meilicke Hoffman & Partn▇▇, ▇▇▇ma▇ ▇▇▇▇sel to the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, to the effect set forth in Exhibit B, (iii) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Bech-Bruun Dragsted Law F▇▇▇, ▇▇▇▇sh counsel to the Issuers Company, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect set forth in Exhibit B, (iv) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Narbarro Nathanson, United Kingdom ▇▇▇▇▇▇▇ ▇o the Company, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect set forth in Exhibit B, and (v) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of MB & Associes, French counsel to the Company, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect set forth in Exhibit B.
(b) On the Closing Date, the Initial Purchaser shall have received the opinion, in form and substance satisfactory to the Initial Purchaser Purchaser, dated as of the Closing Date and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel addressed to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇Cahill Gordon & Reindel L▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇for ▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial itial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may reasonably require. In rendering such opinion, Cahill Gordon & Reindel ▇▇▇ ▇▇▇ll ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received ceived and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiic) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" Independent Accountants a comfort letter or letters dated the date hereof no later than November 23, 2004 and as of the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser.
(ivd) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Company's officers made in any certificate signed by them delivered on or as of the Closing Date in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company shall have complied performed in all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Offering Memorandum, there shall not have occurred (i) any changebeen no event or development, or any development involving a prospective changeand no information shall have become known, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, individually or in the opinion of the Initial Purchaseraggregate, has or would materially adversely affect the market for the Securities, or (ii) any event or development relating be reasonably likely to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleadingMaterial Adverse Effect.
(viiie) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have Notes hereunder shall not been be enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
c. (f) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any none of the Company or the Subsidiaries or any of the respective officers Subsidiaries shall have sustained any loss or directors of the Company interference with respect to its business or the Subsidiaries that makes any statement made in the Final Memorandum untrue properties from fire, flood, hurricane, accident or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable lawother calamity, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not covered by insurance, or from any strike, organized labor dispute, labor slowdown or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture)Material Adverse Effect.
(ixg) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies a certificate of such papers the Company, dated the Closing Date, signed on behalf of the Company by its Chief Executive Officer or any President or Vice President and documents as they may reasonably request in connection therewiththe Chief Financial Officer, all in form and substance reasonably satisfactory to them.the effect that:
(xii) The representations and warranties of the Company shall apply contained in this Agreement are true and correct on and as of the proceeds necessary from date hereof and on and as of the issuance Closing Date, and the Company has performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Notes as described under "Use of Proceeds" in the Final Memorandumhereunder has not been enjoined (temporarily or permanently).
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiih) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivi) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Company shall have furnished or caused to be furnished delivered the following documents and instruments with regard to the Collateral:
(i) to the Trustee (with a copy to the Initial Purchaser), evidence of all registrations or filings in each of the offices where such registrations or filings are necessary or, in the opinion of the Initial Purchaser, desirable to perfect the Liens created or intended to be created thereby;
(ii) to the Initial Purchaser and the Trustee, evidence satisfactory to them of the payment of all filing fees and taxes in connection with the filings and registrations contemplated in clause (i) above and acknowledgment copies of all such further certificates filings; and
(iii) to the Initial Purchaser and documents the Trustee, evidence as may be reasonably requested that all other actions necessary to perfect and, subject to Liens expressly permitted to exist by the terms of the applicable Security Document, protect the Liens created or intended to be created by the Security Documents have been taken. On or before the Closing Date, the Initial Purchaser and counsel for the Initial Purchaser shall have received from the Company such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requestedrequested from the Company. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to for the Initial Purchaser. The Issuers Company shall furnish to the Initial Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers letters, each in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP(other than with respect to clause (i) below) substantially as set forth in Exhibit A hereto, counsel each dated as of the Closing Date and addressed to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, Purchasers with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Company and the Guarantors, (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ + ▇▇▇▇▇▇▇▇▇ PC, special Colorado counsel for the Company and the Guarantors, (iii) ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ (US) LLP, special Florida counsel for the Company and the Guarantors, (iv) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., special North Carolina counsel for the Company and the Guarantors, and (v) ▇▇▇▇, ▇▇▇▇▇▇▇ LLP & Cleveland, PLLC, special Washington counsel for the Company and the Guarantors. In rendering such opinions, such counsel shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in rendering their opinionform and substance satisfactory to the Initial Purchasers, ▇dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants counsel for the IssuersInitial Purchasers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, with respect to certain legal matters relating to this Agreement and such other related matters as the financial statements and other financial information contained in the Final Memorandum previously audited by ▇Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to the Initial Purchaserpass upon such matters.
(ivc) On the date hereof, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers, with respect to the audited and any unaudited financial information included or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update, as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information included or incorporated by reference in the Final Memorandum.
(d) [Reserved.]
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers 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 and the Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Pricing Disclosure Package and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall not have occurred (i) any changebeen no event or development, or any development involving a prospective changeand no information shall have become known, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, individually or in the opinion of the Initial Purchaseraggregate, has or would materially adversely affect the market for the Securities, or (ii) any event or development relating be reasonably likely to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleadingMaterial Adverse Effect.
(viiif) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) The Initial Purchaser Purchasers shall have received certificatesa certificate of the Company, dated the Closing Date and Date, signed on behalf of the Company by the chief executive officer its Chief Executive Officer and the chief financial officer of the CompanyChief Financial Officer, to the effect that:
a. All of (i) the representations and warranties of the Issuers set forth Company and the Guarantors contained in this Agreement are true and correct on and as if made of the Time of Execution and on and as of the Closing Date Date, and the Issuers Company and the Guarantors have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.;
b. The issuance and sale of (ii) at the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal actionClosing Date, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to since the date of this Agreement and hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any no event or development relating has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to or involving any have a Material Adverse Effect; and
(iii) the sale of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There Securities hereunder has not been any change in the capital stock of the Company enjoined (temporarily or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenturepermanently).
(ixh) Each of The Company and the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and Guarantors shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities Base Indenture and the transactions contemplated by this AgreementThird Supplemental Indenture, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all each in form and substance reasonably satisfactory to themthe Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof.
(xii) The Company shall apply No registration under the proceeds necessary from Act of the issuance and Securities is required in connection with the sale of the Notes Securities to the Initial Purchasers as described under "Use of Proceeds" in contemplated by this Agreement and the Pricing Disclosure Package and the Final Memorandum.
(xii) There shall Memorandum or in connection with the initial resale of the Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and the Indenture is not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) required to be qualified under the Securities ActTIA, that in each case assuming (i) (A) it is downgrading its rating assigned to any debt securities of that the Company, purchasers who buy such Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) it that the offer or sale of the Securities is reviewing its rating assigned to any debt securities made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the representations of the Company contained in this Agreement and of the Initial Purchasers in Section 8 hereof regarding the absence of a general solicitation in connection with a view the sale of such Securities to possible downgrading, or with negative implications, or direction not determined.
the Initial Purchasers and the initial resale thereof and (xiiiiii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. On or before the Closing Date, the Initial Purchaser Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Registration Rights Agreement executed by business, corporate, legal and financial affairs of the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers Company and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished heretofore reasonably requested from the Company or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedGuarantors. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company or any Guarantor, as applicable, shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (LGI Homes, Inc.)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date for the Optional Shares. The obligation obligations of the Initial Purchaser Purchasers to purchase and pay for the Securities is Purchased Shares are subject to the accuracy of the representations and warranties contained hereinabsence from any certificates, opinions, written statements or letters furnished to the performance by the Issuers Initial Purchasers pursuant to this Section 7 of their respective covenants and agreements hereunder any misstatement or omissions and to the following additional conditions unless waived in writing by the Initial PurchaserPurchasers:
(i) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers’ Counsel, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇V▇▇▇▇▇ and ▇& E▇▇▇▇▇ P.A.L.L.P., counsel to the Company, addressed to the Initial Purchasers and substantially in the form of Exhibit B hereto. In rendering such opinion.
(ii) The Initial Purchasers shall have received an opinion of counsel in form and substance satisfactory to the Initial Purchasers and Initial Purchasers’ Counsel, ▇▇▇▇▇▇dated the Closing Date, ▇of the S▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and informationLaw Firm, including one or more opinions of local L.L.C., counsel reasonably acceptable for the Company, addressed to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to substantially in the Initial Purchaser, as they may reasonably request to pass upon such mattersform of Exhibit C hereto.
(iiiii) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers’ Counsel, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP .
(iv) The Initial Purchasers shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young KPMG LLP, independent public accountants for the IssuersCompany, "a “comfort" letters ” letter dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇Initial Purchasers’ Counsel.
(v) The Initial Purchasers shall have received letters from each of Netherland S▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPand Coutret, counsel each being independent petroleum engineers for the Company, dated, respectively, as of the date hereof and as of the Closing Date, addressed to the Initial PurchaserPurchasers and in form and substance satisfactory to the Initial Purchasers and Initial Purchasers’ Counsel, with respect to the estimated quantities of the Company’s reserves, the future net revenues from those reserves and their present value as set forth in the Offering Memorandum (or, if the Offering Memorandum is not in existence, the most recent Preliminary Offering Memorandum) and such related matters as the Initial Purchasers shall reasonably request.
(ivvi) The Initial Purchasers shall have received from each of the Company’s officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit C attached hereto.
(vii) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers Company shall have complied in all material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(viviii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or threatened against any of the Issuers Company or against the Initial Purchaser Purchasers relating to the issuance of the Securities or the Initial Purchaser's Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Final Offering Memorandum, or the other Basic Documents or the Transaction Offering Documents.
(viiix) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and or any of the Subsidiaries, taken as a whole, not contemplated by the Final Offering Memorandum thatthat is, in the opinion judgment of the Initial PurchaserPurchasers, would materially adversely affect so material and adverse as to make it impracticable or inadvisable to proceed with the market for offering of the SecuritiesSecurities on the terms and in the manner contemplated by the Offering Documents, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the Subsidiaries, or any of their respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Offering Memorandum untrue or that, in the opinion of the Issuers Company and their its counsel or the Initial Purchaser Purchasers and its counsel, requires Initial Purchasers’ Counsel require the making of any addition to or change in the Final Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viiix) The Initial Purchaser Purchasers shall have received certificates, certificates dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, Company (in their capacities as such) to the effect that:
a. All of the representations and warranties of the Issuers Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part Company to be performed performed, satisfied or satisfied at complied with hereunder on or prior to the Closing DateDate have been duly performed, satisfied or complied with.
b. The issuance and sale of the Securities Purchased Shares pursuant to this Agreement or the Final Offering Memorandum and the consummation of the transactions contemplated by the Transaction Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or or, to such officers’ knowledge, threatened against any of the Issuers Company relating to the issuance of the Securities or the Initial Purchaser's Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, Offering Memorandum or the other Basic Documents or the Transaction Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and or any of the Subsidiaries, taken as a whole, not contemplated by the Final Offering Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the Subsidiaries, or any of their respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Offering Memorandum untrue or that requires the making of any addition to or change in the Final Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ixxi) Each of the Transaction Offering Documents and each other agreement or instrument executed in connection with the Transactions transactions contemplated hereby and thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xxii) All proceedings taken in connection with the issuance of the Securities Purchased Shares and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers’ Counsel. The Initial Purchaser Purchasers and counsel to the Initial Purchaser Purchasers’ Counsel shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xixiii) The Company Purchased Shares shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandumhave been approved for trading on PORTAL.
(xiixiv) There Since the date of this Agreement, there shall not have been any announcement by any "“nationally recognized statistical rating organization," ” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixv) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company, and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xvxvi) The Issuers Company shall have furnished or caused to be furnished to the Initial Purchaser Purchasers such further certificates and documents as the Initial Purchaser Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchaser to purchase and pay for the Securities is subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers Obligors of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserPurchasers:
(i) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers Obligors in form and substance satisfactory to the Initial Purchaser Purchasers and Cahill Gordon & Reindel, counsel to the Initial Purchasers, da▇▇▇ ▇▇▇ ▇▇▇▇ing ▇▇▇▇, of Dickstein Shapiro Morin & Oshinsky LLP, substantially in t▇▇ ▇▇▇▇ ▇f ▇▇▇▇▇▇▇ B ▇▇▇▇to. ▇▇ ▇▇▇▇ering such opinion, Dickstein Shapiro Morin & Oshinsky LLP shall have received and ma▇ ▇▇▇▇ ▇▇▇▇ su▇▇ ▇▇▇ & rti▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser Purchasers and ▇▇Cahill Gordon & Reindel, counsel to the Initial Purchasers, as ▇▇▇▇ ▇▇▇ ▇▇▇son▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request quest to pass upon such matters.
(ii) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of ▇▇Cahill Gordon & Reindel, counsel to the Initial Purchasers, ▇▇▇▇ ▇▇▇▇▇▇t t▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinion, ▇▇Cahill Gordon & Reindel shall have received and may rely ▇▇▇▇ ▇▇▇▇ ▇▇▇ & ert▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates ▇s and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, Cahill Gordon & Reindel may state that their opinion is limit▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇of ▇▇▇ LLP may state that their opinion is limited to matters of New York▇▇rk, Delaware corporate and federal law.
(iii) The Initial Purchaser Purchasers shall have received (a) from Ernst Coopers & Young Lybrand L.L.P. and KPMG Peat Marwick LLP, independent public accountants accou▇▇▇▇▇▇ for the IssuersSt. Louis Station and Channel 32, Incorporated, respectively, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and Cahill Gordon & Reindel, counsel to the Initial Purchasers.
(▇▇▇) ▇▇▇ ▇▇▇▇▇▇ & re▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser.
(iv) The representations ▇ations and warranties of the Issuers Obligors contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers Obligors shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(va) There shall not have been any change in the capital stock or partners or members equity of the Company or any of the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company Company, the Subsidiaries and the Subsidiaries Acquisition Stations shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents Transactions shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order with respect thereto shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers Obligors or the Acquisition Stations or against the Initial Purchaser Purchasers relating to the issuance any of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsTransactions.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final Memorandum that, in the opinion of the Initial PurchaserPurchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries or any of the Acquisition Stations that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers Obligors and their counsel or the Initial Purchaser Purchasers and its their counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer president and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers Obligors set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers Obligors have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or and the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents Transactions have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers Obligors relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, of the other Basic Documents or the Transaction DocumentsTransactions.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final MemorandumMemorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries or any Acquisition Station that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. (a) There has not been any change in the capital stock or members or partners equity of the Company or any of the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company Company, the Subsidiaries, and the Subsidiaries Acquisition Stations have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to our Acquisition, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents Acquisition Agreements and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and St. Louis LMA shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this AgreementAgreement (unless consented to in writing by the Initial Purchasers).
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, Agreement and the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser Purchasers and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to themPurchasers.
(xi) The ACME Parent shall have contributed and assigned to the Company shall apply all of ACME Parent's assets and rights relating to the proceeds necessary from Acquisition Agreement, the issuance St. Louis LMA and sale of the Notes as described under "Use of Proceeds" in Acquisition Stations pursuant to documents satisfactory to the Final MemorandumInitial Purchasers and their counsel.
(xii) The Company shall have received at least $59.9 million aggregate cash proceeds from the Intermediate Equity Contribution and the Parent Equity Contribution.
(xiii) There shall not have been any announcement by any "nationally recognized statistical rating organizationorganiza- tion," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the CompanyCompany or Acme Intermediate, or (B) it is reviewing its rating assigned to any debt securities of the Company or Acme Intermediate with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixiv) On or before the Closing Date, the The Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee Obligors and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Obligors shall have furnished or caused to be furnished to the Initial Purchaser Purchasers such further certificates and documents as the Initial Purchaser Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion from the Great Wolf Parties the Joinder Agreement, dated as of counsel to the Issuers Closing Date and executed by each of the Great Wolf Parties, in form and substance satisfactory to the Initial Purchaser Purchasers and in the form substantially set forth in Exhibit A.
(b) On the Closing Date, the Initial Purchasers shall have received from ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Issuers, (x) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in the form set forth in Exhibit B and (y) a disclosure letter, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in the form set forth in Exhibit C.
(c) On the Closing Date, the Initial Purchasers shall have received from ▇▇▇▇▇ & ▇▇▇▇▇ Co., L.P.A., Ohio counsel to the Issuers, the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in the form set forth in Exhibit D.
(d) On the Closing Date, the Initial Purchasers shall have received from ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, Texas counsel to the Issuers, the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers.
(e) On the Closing Date, the Initial Purchasers shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., Virginia counsel to the Issuers, the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in the form set forth in Exhibit E.
(f) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Purchase Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiig) The On the date hereof, the Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLPthe Independent Accountants a comfort letter dated the date hereof, independent public accountants in form and substance satisfactory to counsel for the IssuersInitial Purchasers with respect to the audited and any unaudited financial information contained in or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, "comfort" letters the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the Closing Date and (b) from information stated in the Chief Financial Officer and Comptroller of the Company, a letter, comfort letter dated the date hereof, relating to hereof and similarly address the financial statements audited and other any unaudited financial information contained in or incorporated by reference in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserMemorandum.
(ivh) The representations and warranties of the Issuers Great Wolf Parties contained in this Purchase Agreement shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of any Great Wolf Party’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Great Wolf Parties shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Pricing Disclosure Package and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall not have occurred been no event or development, and no information shall have become known, that, individually or in the aggregate, had or would be reasonably likely to have a Material Adverse Effect.
(i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents hereunder shall have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
c. (j) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has no Great Wolf Group Member shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not occurred covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, had or would be reasonably likely to have a Material Adverse Effect.
(k) The Initial Purchasers shall have received a certificate of each Great Wolf Party, dated the Closing Date, signed on behalf of each Great Wolf Party by, in the case of GWR, its Chairman of the Board, President or any Senior Vice President and the Chief Financial Officer, or in the case of each other Great Wolf Party by an authorized officer of such Great Wolf Party or its general partner or sole member as applicable, to the effect that:
(i) any change, or any development involving a prospective change, the representations and warranties of such Great Wolf Party contained in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations this Purchase Agreement are true and correct on and as of the Company Time of Execution and on and as of the SubsidiariesClosing Date, taken as a whole, not contemplated by and such Great Wolf Party has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Final Memorandum, or Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development relating has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to or involving any have a Material Adverse Effect; and
(iii) the sale of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There Securities hereunder has not been any change in the capital stock of the Company enjoined (temporarily or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenturepermanently).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiil) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement Indenture executed by the Issuers Great Wolf Parties and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivm) On or before the Closing Date, the Indenture Initial Purchasers shall be have received the Registration Rights Agreement executed by the Issuers and the Trustee Great Wolf Parties and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xvn) The Issuers On the Closing Date, the Initial Purchasers shall have furnished received (i) the Security Documents and each other document or caused instrument required to cause the Guarantees by the Grantors to be furnished secured by first priority liens and security interests on the Collateral to the extent and in the manner provided for in the Indenture and the Security Documents and as described in the Pricing Disclosure Package, in each case executed by the parties thereto, (ii) evidence that all of the liens on the Collateral other than those liens permitted by the Indenture and the applicable Security Documents have been released (which with respect to any mortgages currently encumbering any of the Collateral, shall be deemed satisfied so long as the title insurer is irrevocably committed to issue lender’s title insurance policies insuring that the holders of the Securities have a first priority lien on the real estate Collateral (subject to permitted liens as described in the Indenture and Security Documents)), and (iii) all documents necessary to establish that the Collateral Agent for the benefit of the holders of the Securities will have a perfected first priority security interest or lien on the Collateral (subject to permitted liens as described in the Indenture and Security Documents), as contemplated herein and in the Final Memorandum, shall have been delivered to the Collateral Agent.
(o) On the Closing Date, the Initial Purchaser Purchasers shall have received the Securities executed by the Great Wolf Parties and the Guarantees executed by the Guarantors, and the Securities and the Guarantees shall be in full force and effect at all times from and after the Closing Date. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates documents, opinions, certificates, letters and documents schedules or instruments relating to the business, corporate, legal and financial affairs of the Great Wolf Group Members as the Initial Purchaser they shall have heretofore reasonably requestedrequested from the Issuers. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Purchase Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an the opinion and negative assurance letter, each dated as of counsel the Closing Date, and addressed to the Issuers Initial Purchasers, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company and the Guarantors, in the forms attached hereto as Annex B. In rendering such opinions, the foregoing shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion and negative assurance letter, each in form and substance satisfactory to the Representative, dated as of the Closing Date, and addressed to the Initial Purchaser and ▇▇▇▇▇▇ Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiic) The On the date hereof and on the Closing Date, the Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuerswith respect to WSMM, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letterletters, dated the date hereof, relating to the financial statements respective dates of delivery thereof and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and Purchasers, in form and substance reasonably satisfactory to the Initial Purchaser Representative, containing statements and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the Initial Purchaserfinancial statements and certain financial information contained or incorporated by reference in each of the Pricing Disclosure Package and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(ivd) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Company’s and Guarantors’ respective officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company and the Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Pricing Disclosure Package and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating subsequent to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such 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 Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has none of the Company, the Guarantors nor any of their respective subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not occurred (i) any changecovered by insurance, or from any development involving strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a prospective change, in or affecting the general affairs, management, business, condition Material Adverse Effect.
(financial or other), properties, prospects or results of operations g) The Initial Purchasers shall have received a certificate of the Company and the SubsidiariesGuarantors, taken as a wholedated the Closing Date, not contemplated signed by the Final MemorandumChief Executive Officer or President or any Senior Vice President and the Chief Financial Officer of the Company and each Guarantor, confirming the matters set forth in clauses (d), (e) and (f) of this Section 6.
(h) The Initial Purchasers shall have received reasonably satisfactory evidence of the good standing (or its equivalent in jurisdictions where such concept does not exist) of the Company and the Guarantors as of the Closing Date in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Initial Purchasers may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(i) The Notes shall be eligible for clearance and settlement through DTC.
(j) On the Closing Date, the Indenture, the Security Documents and ICA ▇▇▇▇▇▇▇▇ shall have been duly executed and delivered by a duly authorized officer of each of the Company, the Guarantors, the Trustee and the Collateral Agent, and the Notes shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated by the Trustee.
(k) No securities of the Company shall have been downgraded by any nationally recognized statistical rating organization and no such organization shall have publicly announced that it has under surveillance or review, or (ii) has changed its outlook with respect to, its ratings of any event or development relating to or involving any securities of the Company or any Guarantor (other than an announcement with positive implications of possible upgrading).
(l) The Initial Purchasers shall have received the Subsidiaries or any results of a recent lien search in each of the respective officers or directors jurisdictions where assets of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not Guarantors are located and any jurisdictions in the ordinary course which valid filings with respect to such assets of business), that are material to the Company and the SubsidiariesGuarantors may be in effect, taken and such search shall reveal no liens on any of the assets of the Company, the Guarantors or any of their respective subsidiaries except (i) as a whole, other than those reflected described in the Pricing Disclosure Package and the Final Memorandum.
e. At Memorandum (exclusive of any amendment or supplement thereto after the Closing Date date hereof) and after giving effect (ii) those pursuant to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture)ABL Facility.
(ixm) Each of Except as otherwise provided for in the Transaction Documents and each Security Documents, the Indenture or the other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance documents entered into pursuant to the Initial Purchaser and shall have been executed and delivered by all transactions described herein, the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities Representative and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser Collateral Agent shall have received copies each of such papers and documents as they may reasonably request in connection therewiththe Security Documents, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds Initial Purchasers, and all other certificates, agreements or instruments necessary from to perfect the issuance and sale Collateral Agent’s security interest in all of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) Collateral. On or before the Closing Date, the Initial Purchaser Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Registration Rights Agreement executed by business, corporate, legal and financial affairs of the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing DateCompany, the Indenture shall be executed by the Issuers Guarantors and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers each of their respective subsidiaries as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedCompany. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (WillScot Mobile Mini Holdings Corp.)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Securities. The obligation obligations of the Initial Purchaser to purchase and pay for the Securities is are subject to the accuracy of the representations and warranties contained hereinabsence from any certificates, opinions, written statements or letters furnished to the performance by the Issuers Initial Purchaser pursuant to this Section 7 of their respective covenants and agreements hereunder any misstatement or omission and to the following additional conditions unless waived in writing by the Initial Purchaser:
(iA) The Initial Purchaser shall have received an opinion of counsel to the Issuers opinion, in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Purchaser, in its sole discretion, dated the Closing Date, of O’Melveny & ▇▇▇▇▇▇▇ , LLP, counsel to the Company.
(B) The Initial Purchaser shall have received an opinion, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of ▇▇▇▇▇▇▇ & Lardner, intellectual property counsel to the Company.
(C) The Initial Purchaser shall have received a comfort letter, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of Stonefield ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and informationInc., including one or more opinions registered independent auditor of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such mattersCompany.
(iiD) The Initial Purchaser shall have received an opinion, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ US LLP, counsel to the Initial Purchaser.
(ivE) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the Closing Date; , and the Issuers Company shall have complied in all material respects with all covenants, agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(viF) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by this Agreement or any of the other Basic Documents or the Transaction Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against any of the Issuers Company or against the Initial Purchaser relating to the issuance or the trading of the Securities or the Initial Purchaser's ’ activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, Prospectus or the other Basic Documents or the Transaction Offering Documents.
(viiG) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum Prospectus (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective changechange in, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects properties or results of operations of of, the Company and or any Subsidiary not disclosed in the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum thatProspectus that is, in the opinion judgment of the Initial Purchaser, would materially adversely affect so material and adverse as to make it impracticable or inadvisable to proceed with the market for Offering on the Securitiesterms and in the manner contemplated by the Prospectus, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries any Subsidiary or any of the their respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum Prospectus untrue or that, in the opinion of the Issuers Company and their its counsel or the reasonable judgment of the Initial Purchaser and its counselPurchaser, requires the making of any addition to or change in the Final Memorandum Prospectus in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viiiH) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer President and Chief Executive Officer and the chief financial officer Chief Financial Officer of the Company, to the effect that:
a. (i) All of the representations and warranties of the Issuers Company set forth in this Agreement are true and correct as if made on and as of the Closing Date Date, all covenants agreements, conditions and obligations of the Issuers have Company to be performed, satisfied or complied with hereunder in all respects on or prior the Closing Date have been duly performed, satisfied or complied with.
(ii) No event has occurred and is continuing, as a result of which the Prospectus including all exhibits and attachments thereto would contain an untrue statement of a material respects with all agreements and satisfied all conditions on their part fact or omit to state a material fact required to be performed stated therein or satisfied necessary to make the statements therein, in the light of the circumstances existing at or prior the time it is delivered to the Closing DateInitial Purchaser, not misleading.
b. (iii) The issuance and sale of the Securities Notes pursuant to this Agreement or and the Final Memorandum Prospectus and the consummation of the transactions contemplated by the Transaction Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or or, to such officers’ knowledge, threatened against any of the Issuers Company relating to the issuance or the trading of the Securities or the Initial Purchaser's ’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, Prospectus or the other Basic Documents or the Transaction Offering Documents.
c. (iv) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum Prospectus (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i1) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects properties or results of operations of the Company and the Subsidiaries, taken as a wholeor any Subsidiary, not contemplated by the Final MemorandumProspectus, or, in the judgment of the Initial Purchaser, could result in a Material Adverse Effect upon the Company, or (ii2) any event or development relating to or involving any of the Company or the Subsidiaries any Subsidiary or any of the their respective officers or directors that, in the judgment of the Company or the Subsidiaries that Initial Purchaser, makes any statement made in the Final Memorandum Prospectus untrue or that requires the making of any addition to or change in the Final Memorandum Prospectus in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. v) At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, Prospectus Supplement there exists shall exist no Default or Event of Default (as defined in the Indenture).
(ixI) Each of the Transaction Offering Documents and each other agreement or instrument executed in connection with the Transactions transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xJ) There shall have been Purchaser Letters executed and delivered by the Subsequent Purchasers agreeing to fund a total of $33,156,000 none of the Subsequent Purchasers shall have actually made or threatened to make any amendments, alterations, modifications, withdrawals, waivers or breaches with respect to its Purchaser Letter and/or its commitment set forth on Schedule 1 attached hereto or failed to perform in any respect with respect to its Purchaser Letter and/or its commitment set forth on Schedule 1 attached hereto and the Initial Purchaser shall have no reasonable good faith belief that such commitments or purchases will not be funded.
(K) All proceedings taken in connection with the issuance of the Securities Notes and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xiL) The Company Notes shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandumbe eligible for clearance on DTC.
(xiiM) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before At the Closing Date, the Company and the Trustee shall have entered into the Indenture, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, and the Initial Purchaser shall have received counterparts, dated the Registration Rights Agreement Closing Date and executed by each of the Issuers parties thereto and such agreement the Notes shall be in full force have been duly executed and effect at all times from delivered by the Company and after duly authenticated by the Closing DateTrustee.
(xivN) On There are no pending or before threatened legal or governmental proceedings to which the Closing DateCompany or the Subsidiaries is a party or of which any property of the Company or the Subsidiaries is the subject, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to which, the Initial Purchaser such further certificates believes, in its sole discretion, if determined adversely to the Company or the Subsidiaries, would individually or in the aggregate have a Material Adverse Effect on the financial position or results of operations of the Company and documents the Subsidiaries taken as the Initial Purchaser a whole; and
(O) There shall have reasonably requestedbeen executed by each of the Subsequent Purchasers, as listed on Schedule 1, an Exchange Agreement with the Company representing an aggregate exchange of $40,668,000 principal amount of the Company’s 5.75% Convertible Senior Secured Subordinated Notes due June 15, 2008 and the Company’s 5.75% Convertible Subordinated Notes due June 15, 2008 for $33,156,000 principal amount of the Company’s 7.5% Convertible Senior Notes due April 26, 2011. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers Company shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase and pay for the Securities is subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
(i) The Initial Purchaser shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A.LLP, substantially in the form of Exhibit EXHIBIT B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. LLP shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst Coopers & Young ▇▇▇▇▇▇▇ L.L.P. and KPMG Peat Marwick LLP, independent public accountants for the IssuersSt. Louis Station and Channel 32, Incorporated, respectively, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser.
(iv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(va) There shall not have been any change in the capital stock or partners or members equity of the Company or any of the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company Company, the Subsidiaries and the Subsidiaries Acquisition Stations shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents Transactions shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order with respect thereto shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or the Acquisition Stations or against the Initial Purchaser relating to the issuance any of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsTransactions.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries or any of the Acquisition Stations that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer president and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or and the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents Transactions have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, of the other Basic Documents or the Transaction DocumentsTransactions.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final MemorandumMemorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries or any Acquisition Station that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. (a) There has not been any change in the capital stock or members or partners equity of the Company or any of the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company Company, the Subsidiaries, and the Subsidiaries Acquisition Stations have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to our Acquisition, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents Acquisition Agreements and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and St. Louis LMA shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this AgreementAgreement (unless consented to in writing by the Initial Purchaser).
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, Agreement and the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company ACME Parent shall apply have contributed and assigned to ACME Television all of ACME Parent's assets and rights relating to the proceeds necessary from Acquisition Agreement, the issuance St. Louis LMA and sale of the Notes as described under "Use of Proceeds" in Acquisition Stations pursuant to documents satisfactory to the Final MemorandumInitial Purchaser and its counsel.
(xii) The Company shall have received at least $21.7 million aggregate cash proceeds from the Parent Equity Contribution.
(xiii) The ACME Television Offering shall have been consummated with gross proceeds to ACME Television of at least $115,000,000.
(xiv) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the CompanyCompany or any of its Subsidiaries, or (B) it is reviewing its rating assigned to any debt securities of the Company or any of its Subsidiaries with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixv) On or before the Closing Date, the The Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xivxvi) On or before The Initial Purchaser shall have received the Closing Date, the Indenture shall be Membership Unitholders Agreement executed by the Issuers Company and the Trustee ACME Parent and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xvxvii) The Trustee shall have received the Pledge Agreement duly executed by the Pledgors, together with (i) certificates representing all of the outstanding membership units of ACME Television and all of the outstanding capital stock, partnership interests or membership units, as the case may be, owned directly by the Company of each Subsidiary (collectively, the "Pledged Securities") and (ii) UCC-1 Financing Statements with respect to each Pledgor to be filed in the State of New York, the state of such Pledgor's incorporation or formation and the state of such Pledgor's principal place of business.
(xviii) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Acme Intermediate Holdings LLC)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is Notes shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion the opinion, dated as of counsel to the Issuers in form Closing Date and substance satisfactory addressed to the Initial Purchaser and Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A.Company, substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. LLP shall have received and may rely upon such certificates and other documents and informationinformation as it may reasonably request to pass upon such matters; and
(b) On the Closing Date, including one or more opinions the Initial Purchasers shall have received the opinion, dated as of local counsel reasonably acceptable the Closing Date and addressed to the Initial Purchaser and Purchasers, of ▇▇▇▇▇▇ ▇▇, Pope, ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, Florida counsel for the Company, substantially in the form of Exhibit C hereto. In rendering such opinion, ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, & ▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters.
(iic) The On the Closing Date, the Initial Purchaser Purchasers shall have received an the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing DateDate and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiid) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ive) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers 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 complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated ; 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, and the Company and the Subsidiaries no information shall not have any liabilities become known, that, individually or obligations, contingent or otherwise (whether or not in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final MemorandumMaterial Adverse Effect.
(vif) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents Notes hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
(viig) 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 Company shall not have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chairman of the Board, Chief Executive Officer or the Chief Operating Officer and the Chief Financial Officer, to the effect that
(i) the representations and warranties of the Company contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any no event or development relating to has occurred, and no information has become known, that, individually or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue aggregate, has or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition would be reasonably likely to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect; and
(viiiiii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have Notes hereunder has not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ixi) Each of the Transaction Documents and each other agreement On or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance prior to the Initial Purchaser and Closing Date, the Company shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all entered into a new senior secured revolving credit facility in form and substance reasonably satisfactory to themthe Initial Purchasers.
(xij) The On or prior to the Closing Date, the Company shall apply have entered into an amended and restated floor plan credit facility providing for up to $85.0 million in floor plan financing for purchases of vehicle inventory in form and substance reasonably satisfactory to the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final MemorandumInitial Purchasers.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiik) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivl) The Acquisition Agreement shall have been entered into by all parties thereto and shall be in full force and effect. On or before the Closing Date, the Indenture shall be executed by Initial Purchasers and counsel for the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Initial Purchasers shall have furnished received such further documents, opinions, certificates, letters and schedules or caused to be furnished instruments relating to the Initial Purchaser such further certificates business, corporate, legal and documents financial affairs of the Company as the Initial Purchaser they shall have heretofore reasonably requestedrequested from the Company. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaserconditions:
(ia) The Initial Purchaser shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of Kaye, ▇▇holer, Fierman, Hays & ▇▇andler, LLP, counsel for the Issuer and the Guarantors, substantially the form of Exhibit B hereto. References to the Final Memorandum in such opinion shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(c) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Price Waterhouse, LLP, tax advisors to the Issuer and the Guarantors, with respect to certain tax matters related to the Issuer and the Guarantors, in the form of Exhibit D hereto.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇, ▇▇▇ LLP, counsel to unsel for the Initial PurchaserPurchasers, with respect to the sufficiency of certain corporate proceedings and other legal matters relating to this Agreement Agreement, and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinion, ▇▇▇▇Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇ ▇▇▇▇▇▇ LLP shall ll have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇Cahi▇▇ ▇▇▇▇▇▇ & ▇▇▇▇ein▇▇▇ LLP may ▇▇▇ state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiie) The Initial Purchaser Purchasers shall have received (a) from Ernst Coopers & Young LLPLybr▇▇▇ ▇▇▇, independent public accountants for the IssuersIssuer, "comfort" letters dated dated, respectively, the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇, ▇▇unsel for the Initial Purchasers.
(f) The Initial Purchasers shall have received from Arth▇▇ Ande▇▇▇▇ ▇▇▇, independent public accountants for Caterair, letters dated, respectively, the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and Cahi▇▇ ▇▇▇▇▇▇ LLP& ▇ein▇▇▇, counsel to ▇▇unsel for the Initial PurchaserPurchasers.
(ivg) The representations issuance and warranties sale of the Issuers contained in Securities pursuant to this Agreement shall not be enjoined (temporarily or permanently) and no action, suit or proceeding shall have been commenced with respect to any court or governmental authority.
(h) The Initial Purchasers shall have received a certificate or certificates, dated the Closing Date, of an officer of the Issuer, Caterair and each Guarantor to the effect that to the best of such officers' knowledge after reasonable inquiry:
(A) tors in this Agreement, the SCIS Credit Agreement, the Caterair Credit Agreement and the Dealer Manager Agreement are true and correct in all material respects as if made on and as of the Closing Date; , and the Issuers shall Issuer, Caterair and each of the Subsidiary Guarantors have complied performed in all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.;
(vB) There shall not have been any change in At the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligationsClosing Date, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to since the date of this Agreement and hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not no event or events have occurred (i) occurred, no information has become known nor does any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum exist that, individually or in the opinion of the Initial Purchaseraggregate, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect; and
(viiiC) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder has not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiii) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Issuer and the Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xivj) On or before the Closing Date, the Indenture Senior Bank Financing shall have been consummated and the Existing Credit Agreement shall be executed by the Issuers fully repaid and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Dateterminated.
(xvk) The Issuers Issuer and Caterair, CII and Sky Chefs, as guarantors, and the Bank of New York, as trustee, shall have furnished or caused to be furnished entered into a supplemental indenture to the Initial Purchaser such further certificates and documents indenture dated as of September 15, 1995 (the Initial Purchaser "Old Indenture") governing the Old Notes which shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply be entered into in accordance with the provisions hereof only if they are reasonably satisfactory in all material respects to terms of the Initial Purchaser Old Indenture and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies provide for removal of such opinionssections 4.10, certificates4.11, letters4.12, schedules4.13, documents 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, and instruments in such quantities as the Initial Purchaser shall reasonably request.5.01
Appears in 1 contract
Sources: Purchase Agreement (Caterair International Inc /Ii/)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in its sole discretion, be subject to the accuracy of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The Initial Purchaser Purchasers shall have received an the opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, dated the Closing Date, of Weil, Gotshal & Mang▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A.counsel for the Issuers, substantially in the form of Exhibit B hereto. In rendering such opinion, Weil, Gotshal & Mang▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, information as they it may reasonably request to pass upon such matters.
(iib) The Initial Purchaser Purchasers shall have received an opinionopinion or opinions, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇Lath▇▇ & ▇atk▇▇▇, ▇▇▇ LLP, counsel to unsel for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and certain FCC regulatory matters, and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinionopinion or opinions, Lath▇▇ & ▇▇atk▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall ll have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinionopinion or opinions, Lath▇▇ & ▇▇atk▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion or opinions is limited to matters of New York, California, Delaware corporate and federal law.
(iiic) The Initial Purchaser Purchasers shall have received (a) customary comfort letters from Ernst & Young PricewaterhouseCoopers, LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, KPMG Peat Marwick LLP and BDO Seid▇▇▇ ▇▇▇▇▇ LLP, dated on or prior to the Closing Date, in each case addressed to the Initial Purchaser and Purchasers, in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial PurchaserPurchasers.
(ivd) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on in all material respects as of the date hereof and as of the Closing Date; the Issuers shall have complied in all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There ; and subsequent to the date of the most recent financial statements in the Offering Memorandum, there shall not have been any no material adverse change in the capital stock business, condition (financial or other), results of operations or prospects of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the SubsidiariesIssuers, taken as a whole, other than those reflected in except as set forth in, or contemplated by, the Final Offering Memorandum.
(vie) None of the The issuance and sale of the Securities pursuant to this Agreement or any of by the transactions contemplated by any of the other Basic Documents or the Transaction Documents Issuers hereunder shall not be enjoined (temporarily or permanently) on the Closing Date and no restraining order or other injunctive order shall have been issued; and issued or any action, suit or proceeding shall have been commenced with respect to this Agreement or any other transactions hereby, before any court or governmental authority (including, without limitation, the FCC).
(f) Subsequent to the date as of which information is given in the Offering Memorandum, except as described in or as contemplated by the Offering Memorandum, none of the Issuers shall have incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business) that are material to the Issuers, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other), results of operations or prospects of the Issuers, taken as a whole, and, other than as contemplated by the Offering Memorandum, there shall not have been any legal actionchange in the capital stock or long-term indebtedness of any Issuer that is material to the business, ordercondition (financial or other), decree results of operations or other administrative proceeding instituted or threatened against any prospects of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final MemorandumIssuers, the other Basic Documents or the Transaction Documentstaken as a whole.
(viig) Subsequent to the date as of which information is given in the Offering Memorandum, the conduct of the business and operations of the Company or any of its subsidiaries has not 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 or any of its subsidiaries 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 would not have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Vice President and Assistant Secretary of the Company, to the effect that:
(i) The representations and warranties of the Issuers in this Agreement are true and correct in all material respects as if made on and as of the Closing Date (other than to the extent any such representation or warranty is expressly made to a certain date), and each Issuer has performed in all material respects all covenants and agreements and satisfied, in all material respects, all conditions on their part to be performed or satisfied hereunder, to the extent a party thereto, at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of Offering Memorandum, except as described in the Offering Memorandum, no event or events have occurred, nor has any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum information become known that, individually or in the opinion of the Initial Purchaseraggregate, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect;
(viiiiii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have Issuers hereunder has not been enjoined (temporarily or permanently) and no restraining order by any court or other injunctive order has been issued and there has not been any legal actiongovernmental agency or body (including without limitation, orderthe FCC); and
(iv) Subsequent to the respective dates as of which information is given in the Offering Memorandum, decree except in each case as described in or other administrative proceeding instituted or threatened against any as contemplated by the Offering Memorandum, none of the Issuers relating has incurred any liabilities or obligations, direct or contingent, that are material to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the SubsidiariesIssuers, taken as a whole, not contemplated by the Final Memorandumor entered into any transactions that, individually or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state aggregate, would have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There Material Adverse Effect; and there has not been any no change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt indebtedness of the Company from Issuers that set forth individually or contemplated in the Final Memorandum and the Company and the Subsidiaries aggregate would have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture)Material Adverse Effect.
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiii) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after on the Closing Date.
(xivj) On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedIssuers. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an the opinion and negative assurance letter, each dated as of counsel the Closing Date, and addressed to the Issuers Initial Purchasers, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company and the Guarantors, in the form and substance reasonably satisfactory to the Representative. In rendering such opinions, the foregoing shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion and negative assurance letter, each in form and substance satisfactory to the Representative, dated as of the Closing Date, and addressed to the Initial Purchaser and ▇▇▇▇▇▇ Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiic) The On the date hereof and on the Closing Date, the Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuerswith respect to Parent, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letterletters, dated the date hereof, relating to the financial statements respective dates of delivery thereof and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and Purchasers, in form and substance reasonably satisfactory to the Initial Purchaser Representative, containing statements and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the Initial Purchaserfinancial statements and certain financial information contained or incorporated by reference in each of the Pricing Disclosure Package and the Final Memorandum, provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(ivd) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct at 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 Company’s and Guarantors’ respective officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Pricing Disclosure Package and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating subsequent to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such 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 Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements of Parent included or incorporated by reference in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has none of the Company, the Guarantors nor any of their respective subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not occurred (i) any changecovered by insurance, or from any development involving strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a prospective change, in or affecting the general affairs, management, business, condition Material Adverse Effect.
(financial or other), properties, prospects or results of operations g) The Initial Purchasers shall have received a certificate of the Company and the SubsidiariesGuarantors, taken as a wholedated the Closing Date, not contemplated signed by the Final MemorandumChief Executive Officer or President or any Senior Vice President and the Chief Financial Officer of the Company and each Guarantor, confirming the matters set forth in clauses (d), (e) and (f) of this Section 6.
(h) The Initial Purchasers shall have received reasonably satisfactory evidence of the good standing (or its equivalent in jurisdictions where such concept does not exist) of the Company and the Guarantors as of the Closing Date in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Initial Purchasers may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(i) The Notes shall be eligible for clearance and settlement through DTC.
(j) On the Closing Date, the Indenture, the Security Documents and ICA ▇▇▇▇▇▇▇▇ shall have been duly executed and delivered by a duly authorized officer of each of the Company, the Guarantors, the Trustee and the Collateral Agent, and the Notes shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated by the Trustee.
(k) No securities of the Company shall have been downgraded by any nationally recognized statistical rating organization and no such organization shall have publicly announced that it has under surveillance or review, or (ii) has changed its outlook with respect to, its ratings of any event or development relating to or involving any securities of the Company or any Guarantor (other than an announcement with positive implications of possible upgrading).
(l) The Initial Purchasers shall have received the Subsidiaries or any results of a recent lien search in each of the respective officers or directors jurisdictions where assets of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not Guarantors are located and any jurisdictions in the ordinary course which valid filings with respect to such assets of business), that are material to the Company and the SubsidiariesGuarantors may be in effect, taken and such search shall reveal no liens on any of the assets of the Company, the Guarantors or any of their respective subsidiaries except (i) as a whole, other than those reflected described in the Pricing Disclosure Package and the Final Memorandum.
e. At Memorandum (exclusive of any amendment or supplement thereto after the Closing Date date hereof) and after giving effect (ii) those pursuant to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture)ABL Facility.
(ixm) Each of Except as otherwise provided for in the Transaction Documents and each Security Documents, the Indenture or the other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance documents entered into pursuant to the Initial Purchaser and shall have been executed and delivered by all transactions described herein, the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities Representative and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser Collateral Agent shall have received copies each of such papers and documents as they may reasonably request in connection therewiththe Security Documents, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds Initial Purchasers, and all other certificates, agreements or instruments necessary from to perfect the issuance and sale Collateral Agent’s security interest in all of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) Collateral. On or before the Closing Date, the Initial Purchaser Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Registration Rights Agreement executed by business, corporate, legal and financial affairs of the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing DateCompany, the Indenture shall be executed by the Issuers Guarantors and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers each of their respective subsidiaries as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedCompany. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Securities. The obligation obligations of the Initial Purchaser to purchase and pay for the Securities is are subject to the accuracy of the representations and warranties contained hereinabsence from any certificates, opinions, written statements or letters furnished to the performance by the Issuers Initial Purchaser pursuant to this Section 7 of their respective covenants and agreements hereunder any misstatement or omission and to the following additional conditions unless waived in writing by the Initial Purchaser:
(i) The Initial Purchaser shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(iiA) The Initial Purchaser shall have received an opinion, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of Fulbright & ▇▇▇▇▇▇▇▇, L.L.P., counsel to the Company.
(B) The Initial Purchaser shall have received an opinion, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇-▇▇▇ ▇▇▇▇, LLC and ▇▇▇▇▇ & ▇. ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request ▇, Esq., intellectual property counsel to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal lawthe Company.
(iiiC) The Initial Purchaser shall have received (a) from Ernst & Young LLPa comfort letter, independent public accountants for in form and substance satisfactory to the IssuersInitial Purchaser, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letterin its sole discretion, dated the date hereof, relating of Ernst & Young LLP, registered independent auditor of the Company.
(D) With respect to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇comfort letter of ▇▇▇▇▇ & ▇▇Young LLP referred to in the preceding subsection, the Initial Purchaser shall have received a “bring-down” letter of ▇▇▇▇▇ & Young LLP, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date.
(E) The Initial Purchaser shall have received an opinion, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of DLA Piper US LLP, counsel to the Initial Purchaser.
(ivF) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date; , and the Issuers Company shall have complied in all material respects with all covenants, agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(viG) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by this Agreement or any of the other Basic Documents or the Transaction Offering Documents shall be have been enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against any of the Issuers Company or against the Initial Purchaser relating to the issuance or the trading of the Securities or the Initial Purchaser's ’s activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, Offering Memorandum or the other Basic Documents or the Transaction Offering Documents.
(viiH) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective changechange in, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects properties or results of operations of of, the Company and not disclosed in the Subsidiaries, taken as a whole, not contemplated by the Final Offering Memorandum thatthat is, in the opinion judgment of the Initial Purchaser, would materially adversely affect so material and adverse as to make it impracticable or inadvisable to proceed with the market for Offering on the Securitiesterms and in the manner contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the its officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Offering Memorandum untrue or that, in the opinion of the Issuers Company and their its counsel or the reasonable judgment of the Initial Purchaser and its counselPurchaser, requires the making of any addition to or change in the Final Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viiiI) The Initial Purchaser shall have received certificatesa certificate, dated the Closing Date and signed by the chief executive officer President and the chief financial officer Chief Financial Officer of the Company, to the effect thatthat to the best of his knowledge:
a. (i) All of the representations and warranties of the Issuers Company set forth in this Agreement are true and correct (in the case of representations and warranties qualified as if made to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date, and all covenants agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder or prior the Closing Date and the Issuers have been duly performed, satisfied or complied with in all material respects with respects.
(ii) No event has occurred and is continuing, as a result of which the Offering Memorandum including all agreements exhibits and satisfied all conditions on their part attachments thereto would contain an untrue statement of a material fact or omit to state a material fact required to be performed stated therein or satisfied necessary to make the statements therein, in the light of the circumstances existing at or prior the time it is delivered to the Closing DateInitial Purchaser, not misleading.
b. (iii) The issuance and sale of the Securities pursuant to this Agreement or and the Final Offering Memorandum and the consummation of the transactions contemplated by the Transaction Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or or, to such officer’s knowledge, threatened against any of the Issuers Company relating to the issuance or the trading of the Securities or the Initial Purchaser's ’s activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, Offering Memorandum or the other Basic Documents or the Transaction Offering Documents.
c. (iv) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i1) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects properties or results of operations of the Company and the Subsidiaries, taken as a wholeCompany, not contemplated by the Final Offering Memorandum, except for any change or prospective change that would not reasonably be expected to result in a Material Adverse Effect upon the Company, or (ii2) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective its officers or directors that, in the judgment of the Company or the Subsidiaries that Initial Purchaser, makes any statement made in the Final Offering Memorandum untrue or that requires the making of any addition to or change in the Final Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. v) At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, Offering Memorandum there exists shall exist no Default or Event of Default (as defined in the Indenture).
(ixJ) There shall have been confirmed sales to the Subsequent Purchasers agreeing to fund a total of $60,000,000, none of the Subsequent Purchasers shall have actually made or threatened to make any amendments, alterations, modifications, withdrawals, waivers or breaches with respect to its commitment to purchase the Notes and Warrants, and the Initial Purchaser shall have no reasonable good faith belief that such commitments or purchases will not be funded.
(K) Each of the Transaction Offering Documents and each other agreement or instrument executed in connection with the Transactions transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xL) All corporate proceedings taken in connection with the issuance of the Securities Notes and Warrants and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xiM) The Company Notes shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandumbe eligible for clearance on DTC.
(xiiN) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before At the Closing Date, the Company and the Trustee shall have entered into the Indenture, in form and substance satisfactory to the Initial Purchaser, in its reasonable discretion, and the Initial Purchaser shall have received counterparts, dated the Registration Rights Agreement Closing Date and executed by each of the Issuers parties thereto and such agreement the Notes shall be in full force have been duly executed and effect at all times from delivered by the Company and after duly authenticated by the Closing DateTrustee.
(xivO) On or before At the Closing Date, each of the Indenture Offering Documents shall be have been executed and delivered by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Dateparties thereto.
(xvP) The Issuers shall have furnished There are no pending or caused threatened legal or governmental proceedings to be furnished to which the Company is a party or of which any property of the Company is the subject, which, the Initial Purchaser such further certificates and documents believes, in its reasonable discretion, if determined adversely to the Company, would individually or in the aggregate have a Material Adverse Effect on the financial position or results of operations of the Company taken as the Initial Purchaser shall have reasonably requesteda whole. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers Company shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The ------------------------------------------------- obligation of the Initial Purchaser to purchase and pay for the Securities is Notes shall, in its sole discretion, be subject to the accuracy satisfaction and fulfillment of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The Initial Purchaser shall have received an opinion of counsel to the Issuers a signed opinion, in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to for the Initial Purchaser, dated the Closing DateDate and addressed to the Initial Purchaser, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. ("Mintz ▇▇▇▇▇▇"), counsel for the Company, in the form of ----------- Exhibit B hereto. In addition, in rendering their opinion, Mintz, ▇▇▇▇▇▇▇▇ --------- may rely as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Massachusetts or the General Corporation Law of the State of Delaware or federal law, to the extent such counsel deems proper and ▇specifies in such opinion, upon the opinion of other counsel who are reasonably satisfactory to counsel for the Initial Purchaser; provided, however, that ▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ shall state that they, the -------- ------- Initial Purchaser and ▇▇▇▇▇▇ P.A. counsel for the Initial Purchaser are justified in relying on such opinion.
(b) The Initial Purchaser shall have received a signed opinion, in form and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel for the Initial Purchaser, dated the Closing Date and addressed to the Initial Purchaser, as they may reasonably request to pass upon such matters.from a local counsel in each jurisdiction in which Mortgaged Property is located, each substantially in the form of Exhibit C hereto. ---------
(iic) The Initial Purchaser shall have received an a signed opinion, in form and substance satisfactory to the Initial Purchaser, dated the Closing DateDate and addressed to the Initial Purchaser, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to for the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement Agreement, and such other related matters as the Initial Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received received, and may rely upon upon, such certificates and other documents and information as they may reasonably request re quest to pass upon such matters. In addition.
(d) The Initial Purchaser shall have received from the Independent Accountant a letter dated the date hereof and the Closing Date, addressed to the Initial Purchaser, each in rendering their opinion, ▇▇form and substance satisfactory to the Initial Purchaser and Ca ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York▇, Delaware corporate and federal lawcounsel for the Initial Purchaser.
(iiie) The representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the 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 Final Memorandum, there shall have been no Material Adverse Change.
(f) The sale of the Notes by the Company hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date as of which information is given in the Final Memorandum, except in each case as described in the Final Memorandum, neither the Company nor any of the Subsidiaries shall have incurred any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, or entered into any transactions whether or not in the ordinary course of business that are material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there shall not have been any adverse change in the capital stock or long-term indebtedness of the Company or any of the Subsidiaries that is material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole.
(h) Subsequent to the date as of which information is given in the Final Memorandum, the conduct of the business and operations of the Company or any of the Subsidiaries has not 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 in the Final Memorandum, the properties of the Company or any of the Subsidiaries 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 would not, singly or in the aggregate, have a Material Adverse Effect.
(i) The Initial Purchaser shall have received (a) from Ernst & Young LLPa certificate of the Company, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from addressed to the Initial Purchaser, signed on behalf of the Company by its Chairman, President or any Vice President and the Chief Financial Officer to the effect that:
(i) The representations and Comptroller warranties of the CompanyCompany contained in this Agreement are true and correct in all material respects as if made on and as of the Closing Date, a letterand the Company has performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied in connection with this Agreement at or prior to the Closing Date;
(ii) At the Closing Date, dated since the date hereof, relating to hereof or since the financial statements and other financial respective dates as of which information contained is given in the Final Memorandum previously audited (exclusive of any amendment or supplement thereto since the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, to the best knowledge of such officers after due inquiry would have a material adverse effect on the business, condition (financial or other) or results of operations or prospects of the Company;
(iii) Since the date hereof or since the date of which information is given in the Final Memorandum, neither the Company nor any of the Subsidiaries has incurred any liabilities or obligations direct or contingent (other than in the ordinary course of business) that are material to the Company or any of the Subsidiaries or, entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any of the Subsidiaries that is material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries at and as of the Closing Date, taken as a whole, except as described by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLPthe Final Memorandum.
(iv) The sale of the Notes by the Company has not been enjoined (temporarily or permanently).
(j) The Initial Purchaser shall have received the Registration Rights Agreement executed by the Company and the Registration Rights Agreement shall be in full force and effect at all times from and after the date hereof.
(k) On the Closing Date, addressed the Company shall have delivered to the Initial Purchaser and to the Trustee the following documents and instruments with regard to the Mortgaged Property:
(i) each Mortgage encumbering the Company's fee interest in the Mortgaged Property, duly executed and acknowledged by the owner or holder of such fee interest and otherwise in form for recording in the appropriate recording office of the political subdivision where such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof and substance such UCC-1 financing statements and other similar statements as are contemplated in respect of such Mortgage by the local counsel opinion delivered with respect thereto, pursuant to Section 7(b) hereof, and any other instruments necessary to grant the interests purported to be granted by the Mortgage under the laws of any applicable jurisdiction, which Mortgage and financing statements and other instruments shall be effective to create a Lien (as defined in the Indenture) on such Mortgaged Property subject to no Liens other than as set forth in Schedule B to the applicable Mortgage;
(ii) with respect to each Mortgage, a policy of title insurance on ALTA Form B (1990) or equivalent (or a commitment to issue such a policy) insuring (or committing to insure) the Lien of the Mortgage as a valid first mortgage Lien on the Real Property in respect of the Notes in an amount not less than the fair market value of such Real Property which policy (or commitment) shall (A) be issued by Chicago Title Insurance Company or another nationally recognized title insurance company reasonably acceptable to the Initial Purchaser, (B) include such reinsurance arrangements (with provisions for direct access) as shall be reasonably acceptable to the Initial Purchaser, (C) have been supplemented by such endorsements, or, where such endorsements are not available at commercially reasonable premium costs, opinion letters of special counsel, architects or other professionals, which counsel, architects or other professionals shall be reasonably acceptable to the Initial Purchaser, as shall be reasonably requested by the Initial Purchaser (including, without limitation, endorsements or opinion letters on matters relating to usury, last dollar, zoning, non-imputation, public road access, contiguity (where appropriate), except that improvements need not be located thereon, survey, variable rate and so-called comprehensive coverage over covenants and restrictions) and (D) contain only such exceptions to title as shall be reasonably agreed to by the Initial Purchaser prior to the Closing Date with respect to such Mortgaged Property;
(iii) with respect to each Mortgaged Property, a survey complying with the minimum detail requirements of the American Land Title Association (as such requirements are in effect on the date of delivery of such survey), except that improvements need not be located thereon, certified to the Trustee, and dated (or redated) not earlier than six months prior to the date of delivery thereof, unless there shall have occurred any exterior change in the property affected thereby during such period, in which event such survey shall be dated or redated to a date after the completion of such change, which survey shall locate all public streets and certify that none of the recorded easements encroach upon the improvements on such Mortgaged Property;
(iv) with respect to the Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as shall reasonably be deemed necessary by the Initial Purchaser in order for the owner or holder of the fee interest to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(v) with respect to the Mortgaged Property, policies or certificates of insurance as required by the Mortgage relating thereto, which policies or certificates shall bear mortgagee endorsements of the character customarily and reasonably required by the Mortgage;
(vi) with respect to each Mortgaged Property, UCC, judgment and tax lien searches confirming that the personal property comprising a part of such Mortgaged Property is subject to no Liens other than as set forth in Schedule B to the applicable Mortgage;
(vii) checks payable to the appropriate public officials in payment of all recording costs and transfer taxes due in respect of the execution, delivery or recording of each Mortgage, together with a check or wire transfer for the title company in payment of its premium search and examination charges, survey costs and any other amounts due in connection with the issuance of its policies (or commitments);
(viii) with respect to the Mortgaged Property, copies of all Leases and Subleases (as defined in the Mortgages), all of which Leases and Subleases shall, to the extent not previously approved in writing by the Initial Purchaser, be reasonably satisfactory to the Initial Purchaser; and
(ix) with respect to the Mortgaged Property, an Officers' Certificate (as defined in the Indenture) stating that (i) there has been issued and is in effect a valid and proper certificate of occupancy or local equivalent if required by the local codes or ordinances, for the use of such Mortgaged Property and (ii) there is not outstanding any citation, violation or similar notice indicating that such Mortgaged Property contains conditions which are not in compliance with local codes or ordinances relating to building or fire safety or structural soundness.
(l) On the Closing Date, the Company shall have delivered to the Initial Purchaser and to the Trustee the Security Agreement, duly executed by the Company, together with the evidence of the filing of appropriate financing statements in each of the offices where such filing is necessary or, in the opinion of the Initial Purchaser, desirable to perfect the Liens created or intended to be created, by the Security Agreement. All filing fees and taxes in connection with such filings shall have been paid and the Initial Purchaser shall have received evidence satisfactory to it of such filings and payments, including in the case of any financing statements, the acknowledgment copies of all such financing statements bearing evidence of filing in each such office.
(m) On the Closing Date, the Company shall have delivered to the Initial Purchaser, the Intercreditor Agreement among the Company, the Trustee and NationsBank, N.A. duly executed by the Company.
(n) On the Closing Date, the Company shall have delivered or cause to be delivered to the Initial Purchaser such documentation and instruments as may be necessary or required to effectuate the termination of the Lien of the Revolver Lender on the Pledged Collateral and Mortgaged Property, including, without limitation, mortgage releases, UCC financing statements and amendments to the existing Revolving Credit Facility. On or before the Closing Date, the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser.
(iv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of for the Initial Purchaser, would materially adversely affect the market for the Securitiesshall have received such further documents, certificates and schedules or (ii) any event or development instruments relating to or involving any the business, corporate, legal and financial affairs of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser as they shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of reasonably request from the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement Section 7 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers Company shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments and such other documents, in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchaser to purchase and pay for the Securities is Notes shall be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The Final Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to the Initial Purchaser Purchasers as promptly as practicable on or following the date of this Agreement or at such other date and time as to which the Initial Purchasers may agree; and no stop order suspending the sale of the Notes in any jurisdiction shall have been issued and no proceedings for the purpose shall have been commenced or shall be pending or threatened.
(b) None of the Initial Purchasers shall have discovered and disclosed to Parent or any Subsidiary on or prior to the Closing Date that the Final Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Initial Purchasers, is material or omits to state any fact which, in the opinion of such counsel is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Final Memorandum and the transactions contemplated thereby, shall be satisfactory in all material respects to the Initial Purchasers, and Parent and the Subsidiaries shall have furnished to the Initial Purchasers all documents and information that they or their counsel may reasonably request to enable them to pass upon such matters.
(d) On the Closing Date, the Initial Purchasers shall have received an opinion opinion, dated as of counsel the Closing Date and addressed to the Issuers Initial Purchasers, of Kirk▇▇▇▇ & ▇lli▇, ▇▇unsel for Parent and the Subsidiaries, substantially in the form annexed hereto as Exhibit A.
(e) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and ▇▇▇▇▇▇ ▇▇▇▇▇▇ addressed to the Initial Purchasers, of White & ▇▇▇▇▇▇▇ Case LLP, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇ Case LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition.
(f) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP (auditors of Orius Corp., in rendering their opinionU.S. Cable , Inc., CATV Subscriber Services, Inc., DAS-Co of Idaho, Inc., Copenhagen Utilities and Construction Inc., Texel Corporation, LISN, Inc. and Arion, Inc.), Will▇▇▇▇, ▇▇ ▇ung & Associates, LLC (auditors of Channel Communications, Inc.), Milh▇▇▇▇, ▇▇rt▇ & ▇eal, ▇▇P (auditors of Scha▇▇ Underground Cable, Inc.) and BDO Seid▇▇▇, ▇▇▇ LLP may state that their opinion is limited to matters P (auditors of New YorkNetwork Cabling Services, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLPInc.), all independent public accountants for the Issuersaccountants, "comfort" comfort letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivg) The representations and warranties of the Issuers Parent and each Subsidiary contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of Parent's or any Subsidiary's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; Parent and each Subsidiary shall have complied performed in all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated ; and, except as described in the Final Memorandum and (exclusive of any amendment or supplement thereto after the Company and date hereof), subsequent to the Subsidiaries date of the most recent financial statements in such Final Memorandum, there shall not have any liabilities been no event or obligationsdevelopment that, contingent individually or otherwise (whether or not in the ordinary course of business)aggregate, that are material has had or could reasonably be expected to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final MemorandumMaterial Adverse Effect.
(vih) None On the Closing Date, the Initial Purchaser shall have received copies of the issuance good standing certificates for Parent and each Subsidiary from their respective states of organization.
(i) The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents Notes hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
(viij) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there the conduct of the business and operations of Parent and the Subsidiaries shall not have been interfered with by, fire, flood, hurricane, accident or other calamity (whether or not insured) or from any strike, labor dispute, slow down or work stoppage, or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of Parent or 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 could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(k) There shall not have occurred any invalidation of Rule 144A under the Act by any court or any withdrawal or proposed withdrawal of any rule or regulation under the Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the judgment of the Initial Purchasers would materially impair the ability of the Initial Purchasers to purchase, hold or effect resales of the Notes contemplated hereby.
(l) The Initial Purchasers shall have received a certificate from Parent and each Subsidiary, dated the Closing Date, signed by the two executive officers (or one executive officer and one vice president or assistant vice president) of each such entity and attested by the secretary or assistant secretary of each such entity to the effect that:
(i) any changeSuch executive officers have carefully examined the Final Memorandum, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the SubsidiariesFinal Memorandum, taken as of its date, did not include any untrue statement of a whole, material fact and did not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order omit to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, and since the date of the Final Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Final Memorandum so that the Final Memorandum (as so amended or supplemented) would not include any untrue statement of a material fact and would not omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(viiiii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth such entity contained in this Agreement are true and correct as if made on and as of the Closing Date Date, and the Issuers have complied entity has performed in all material respects with all covenants and agreements and satisfied in all material respects all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanentlyiii) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since Since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, except as described in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any to their knowledge after due inquiry, no event or development relating has occurred, no information has become known nor does any condition exist that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.
(iv) No proceeding is pending or involving any contemplated for the liquidation or dissolution of such entity or threatening its existence. Each such certificate shall also have attached copies of (i) all resolutions of the Company or the Subsidiaries or any Board of the respective officers or directors Directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of such entity authorizing the transactions contemplated by this Agreement, including, without limitation, approving the other Basic Documents offering of the Notes, the execution, performance and delivery of this Agreement, the Indenture and the Transaction DocumentsRegistration Rights Agreements, there exists no Default (ii) the certificate of incorporation and by-laws or Event analogous organizational documents of Default such entity, and (as defined in iii) the Indenture).
(ix) Each names, offices and specimen signatures of the Transaction Documents and each other agreement or instrument executed officer of such entity that will execute any document delivered in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement. For the purposes of the certificate contemplated by this Section 7(1), the other Basic Documents and the Transaction Documents and all documents and papers relating thereto following shall be reasonably satisfactory deemed to be "executive officers" of a particular entity: its Chairman of the Initial Purchaser and counsel to Board, Vice Chairman of the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewithBoard, all in form and substance reasonably satisfactory to themPresident, Chief Executive Officer, Chief Operating Officer, Chief Financial Officer or Executive Vice President.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiim) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement duly executed by the Issuers Parent and each Subsidiary and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivn) The Indenture shall have been duly executed and delivered by Parent, the Subsidiaries and the Trustee, and the Notes shall have been duly executed and delivered by Parent and the Subsidiaries and duly authenticated by the Trustee.
(o) The Notes shall have been approved by the NASD for trading in the PORTAL Market. On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Issuers business, corporate, legal and financial affairs of Parent and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedIssuers. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserPurchasers:
(i) The Initial Purchaser Purchasers shall have received an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Issuers Issuers, in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, dated the Closing Date. In rendering such opinion, of ▇▇▇▇▇▇Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇ and ▇▇& ▇▇▇▇ P.A.LLP, substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, a "comfort" letters letter dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers.
(iv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries Issuers or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company and the Subsidiaries Issuers shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the SubsidiariesIssuers, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser Purchasers relating to the issuance of the Securities or the Initial Purchaser's Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, Memorandum or the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the SubsidiariesIssuers, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating re- lating to or involving any of the Company or the Subsidiaries Issuers or any of the officers or directors of the Company or the Subsidiaries Issuers that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the CompanyIssuers, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or or, to the best knowledge of the Issuers, threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or Agreement, the Final Memorandum, Memorandum or the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the SubsidiariesIssuers, taken as a whole, not contemplated by the Final MemorandumMemorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries Issuers or any of the respective officers or directors of the Company or the Subsidiaries Issuers that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. (i) There has not been any change in the capital stock of the Company or the Subsidiaries Issuers nor any material increase in the consolidated short-term or long-term debt of the Company Issuers from that set forth or contemplated in the Final Memorandum and (ii) the Company and the Subsidiaries Issuers have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the SubsidiariesIssuers, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this AgreementAgreement and, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Initial Purchaser Purchasers and counsel to the Initial Purchaser Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xiix) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixi) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xvxii) The Issuers Issuer shall have furnished or caused to be furnished to the Initial Purchaser Purchasers such further certificates and documents as the Initial Purchaser Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Issuers Issuer shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion the following opinions, dated as of counsel the Closing Date and addressed to the Issuers Initial Purchasers, of (i) Robert M. Hall, Senior Vice President of Business Affairs and General ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ Company, substantially in the form set forth in Exhibit B, (ii) Weil, Gotshal & Manges LLP, securities counsel for the Company, substantially in the f▇▇▇ ▇▇t forth in Exhibit C, and (iii) Latham & Watkins, special regulatory counsel for the Company, substant▇▇▇▇▇ in ▇▇▇ ▇▇▇m set forth in Exhibit D, in each case, with usual and customary limitations and exceptions reasonably acceptable to the Representatives.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon & Reindel, counsel for the Initial Purchasers, with resp▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇n l▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters tters relating to this Agreement and such other related matters as the Initial Purchaser 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 they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiic) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivd) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Issuers' officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated ; 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, and the Company and the Subsidiaries no information shall not have any liabilities become known, that, individually or obligations, contingent or otherwise (whether or not in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final MemorandumMaterial Adverse Effect.
(vie) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
(viif) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers 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 Issuers contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Issuers have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any changeto the knowledge of such officer after due investigation, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any no event or development relating to has occurred, and no information has become known, that, individually or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue aggregate, has or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition would be reasonably likely to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect; and
(viiiiii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder has not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xih) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser Representatives shall have received the Registration Rights Agreement executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xivi) On or before The Company and Finance Co. shall have entered into the Closing Date, the Indenture shall be executed indemnification agreement contemplated by the Issuers Final Memorandum and the Trustee terms and conditions of such indemnification agreement shall conform in all material respects to the description thereof contained in the Final Memorandum and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xvj) The Issuers Initial Purchasers shall have furnished or caused to be furnished received the intellectual property license agreement between the Company and Hughes contemplated by the Final Memorandum and such agreement shall b▇ ▇▇ ▇ull force and effect and shall not have been amended.
(k) The Initial Purchasers shall have received a solvency certificate, in form and substance reasonably satisfactory to the Representatives, from the Chief Financial Officer of the Company setting forth such officer's certification that the representation made under Section 2(dd) hereof is true and accurate. The Initial Purchaser Purchasers and counsel for the Initial Purchasers shall have received such further certificates documents, opinions, certificates, letters and documents schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as the Initial Purchaser they shall have heretofore reasonably requestedrequested from the Company. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an the opinion and negative assurance letter, each dated as of counsel the Closing Date, and addressed to the Issuers Initial Purchasers, of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ US LLP, counsel for the Company and the Guarantors, in the form and substance reasonably satisfactory to the Representative. In rendering such opinions, the foregoing shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion and negative assurance letter, each in form and substance satisfactory to the Representative, dated as of the Closing Date, and addressed to the Initial Purchaser and ▇▇▇▇▇▇ Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiic) The On the date hereof and on the Closing Date, the Initial Purchaser Purchasers shall have received from (ai) from Ernst & Young LLP, independent public accountants for the Issuerswith respect to WSMM, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letterletters, dated the date hereofrespective dates of delivery thereof and addressed to the Initial Purchasers, relating in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and other certain financial information contained or incorporated by reference in each of the Pricing Disclosure Package and the Final Memorandum previously audited by ▇Memorandum, provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date, and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants with respect to ▇▇▇▇▇▇▇, letters, dated the respective dates of delivery thereof and addressed to the Initial Purchaser and Purchasers, in form and substance reasonably satisfactory to the Initial Purchaser Representative, containing statements and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the Initial Purchaserfinancial statements and certain financial information contained or incorporated by reference in each of the Pricing Disclosure Package and the Final Memorandum, provided that the letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date.
(ivd) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct at 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 Company’s and Guarantors’ respective officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Pricing Disclosure Package and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating subsequent to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such 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 Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements of WSMM included or incorporated by reference in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has none of the Company, the Guarantors nor any of their respective subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not occurred (i) any changecovered by insurance, or from any development involving strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a prospective change, in or affecting the general affairs, management, business, condition Material Adverse Effect.
(financial or other), properties, prospects or results of operations g) The Initial Purchasers shall have received a certificate of the Company and the SubsidiariesGuarantors, taken as a wholedated the Closing Date, not contemplated signed by the Final MemorandumChief Executive Officer or President or any Senior Vice President and the Chief Financial Officer of the Company and each Guarantor, confirming the matters set forth in clauses (d), (e) and (f) of this Section 6.
(h) The Initial Purchasers shall have received reasonably satisfactory evidence of the good standing (or its equivalent in jurisdictions where such concept does not exist) of the Company and the Guarantors as of the Closing Date in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Initial Purchasers may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(i) The Notes shall be eligible for clearance and settlement through DTC.
(j) On the Closing Date, the Indenture, the Security Documents and ICA ▇▇▇▇▇▇▇▇ shall have been duly executed and delivered by a duly authorized officer of each of the Company, the Guarantors, the Trustee and the Collateral Agent, and the Notes shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated by the Trustee.
(k) No securities of the Company shall have been downgraded by any nationally recognized statistical rating organization and no such organization shall have publicly announced that it has under surveillance or review, or (ii) has changed its outlook with respect to, its ratings of any event or development relating to or involving any securities of the Company or any Guarantor (other than an announcement with positive implications of possible upgrading).
(l) The Initial Purchasers shall have received the Subsidiaries or any results of a recent lien search in each of the respective officers or directors jurisdictions where assets of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not Guarantors are located and any jurisdictions in the ordinary course which valid filings with respect to such assets of business), that are material to the Company and the SubsidiariesGuarantors may be in effect, taken and such search shall reveal no liens on any of the assets of the Company, the Guarantors or any of their respective subsidiaries except (i) as a whole, other than those reflected described in the Pricing Disclosure Package and the Final Memorandum.
e. At Memorandum (exclusive of any amendment or supplement thereto after the Closing Date date hereof) and after giving effect (ii) those pursuant to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture)ABL Facility.
(ixm) Each of Except as otherwise provided for in the Transaction Documents and each Security Documents, the Indenture or the other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance documents entered into pursuant to the Initial Purchaser and shall have been executed and delivered by all transactions described herein, the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities Representative and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser Collateral Agent shall have received copies each of such papers and documents as they may reasonably request in connection therewiththe Security Documents, all in form and substance reasonably satisfactory to themthe Initial Purchasers, and all other certificates, agreements or instruments necessary to perfect the Collateral Agent’s security interest in all of the Collateral.
(xin) The Company On the date hereof and on the Closing Date, the Initial Purchasers shall apply have received a written certificate executed by the proceeds necessary from the issuance and sale Chief Financial Officer of WSMM, dated as of the Notes as described under "Use of Proceeds" date hereof and the Closing Date, regarding certain information in the Pricing Disclosure Package and the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under , respectively, and in form and substance reasonably satisfactory to the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) Representative. On or before the Closing Date, the Initial Purchaser Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Registration Rights Agreement executed by business, corporate, legal and financial affairs of the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing DateCompany, the Indenture shall be executed by the Issuers Guarantors and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers each of their respective subsidiaries as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedCompany. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (WillScot Mobile Mini Holdings Corp.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The Initial Purchaser shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of ▇▇▇▇▇▇the Closing Date and addressed to the Initial Purchasers, of (i) ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A.LLP, counsel for the Issuers and the Guarantors in form and substance reasonably acceptable to the Initial Purchasers substantially in the form of Exhibit B hereto. In rendering such opinionA, (ii) ▇▇▇▇▇ and Roca LLP, Nevada counsel, ▇▇▇▇▇ ▇▇▇▇ LLP, Colorado counsel, for the Issuers and the Guarantors in form and substance reasonably acceptable to the Initial Purchasers substantially in the form of Exhibit B-1 and B-2, respectively, (iii) ▇▇▇▇▇ and Roca LLP, Nevada local gaming counsel, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Missouri local gaming counsel, ▇▇▇▇▇ ▇▇▇▇ LLP, Colorado local gaming counsel and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Law Firm, Iowa local gaming counsel for the Issuers and the Guarantors, in form and substance reasonably acceptable to the Initial Purchasers substantially in the form of Exhibit C-1, C-2, C-3 and C-4, respectively and (iv) ▇▇▇▇ LLP▇▇▇▇▇▇▇▇▇▇, Esq., general counsel to the Company in form and substance reasonably acceptable to the Initial Purchaser, as they may reasonably request to pass upon such matters.Purchasers substantially in the form of Exhibit D.
(iib) The On the Closing Date, the Initial Purchaser Purchasers shall have received an the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing DateDate and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiii) The On the date hereof, the Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLPDeloitte a comfort letter dated the date hereof, independent public accountants addressed to the Initial Purchasers in form and substance satisfactory to the Representative, covering the financial information in the Pricing Disclosure Package and other customary matters. On the Closing Date, the Initial Purchasers shall have received from Deloitte a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the IssuersInitial Purchasers, "comfort" letters which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the Closing Date information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(bii) On the date hereof, the Initial Purchasers shall have received from the Chief Financial Officer and Comptroller of the Company, PWC a letter, comfort letter dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and Purchasers in form and substance reasonably satisfactory to the Representative. On the Closing Date, the Initial Purchaser Purchasers shall have received from PWC a comfort letter dated the Closing Date, in form and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPsubstance satisfactory to counsel for the Initial Purchasers, counsel which shall refer to the Initial Purchasercomfort 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.
(ivd) The representations and warranties of the Issuers and the Guarantors contained in this Agreement shall be true and correct on and as of the Time of Execution (in the case of the Company and the Guarantors) and on and as of the Closing Date (in the case of the Issuers and the Guarantors) 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 Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Pricing Disclosure Package and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting subsequent to the general affairs, management, business, condition (financial or other), properties, prospects or results of operations date of the Company most recent audited financial statements in such Pricing Disclosure Package and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto), there shall have been no event or development, and no information shall have become known, that, individually or in the opinion of the Initial Purchaseraggregate, has or would materially adversely affect the market for the Securities, or (ii) any event or development relating be reasonably likely to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleadingMaterial Adverse Effect.
(viiie) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder shall not been be enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
c. (f) Subsequent to the date of this Agreement and since the date of the most recent audited financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has not occurred or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chief Executive Officer, President or any Senior Vice President and the Chief Financial Officer, to the effect that:
(i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations representations and warranties of the Company and Guarantors and, upon the Subsidiariesexecution and delivery of the Joinder Agreement, taken the Issuers and the Guarantors contained in this Agreement are true and correct on and as a wholeof the Time of Execution and on and as of the Closing Date, not contemplated by and the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent audited financial statements in the Pricing Disclosure Package and the Final Memorandum, or (ii) any no event or development relating has occurred, and no information has become known to the Company, that, individually or involving any in the aggregate, has or would be reasonably likely to have a Material Adverse Effect;
(iii) the sale of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There Securities hereunder has not been any change in the capital stock of the Company enjoined (temporarily or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of businesspermanently), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).; and
(ixiv) Each of except as may be required by the Transaction Documents and each other agreement or instrument executed Gaming Authorities in connection with the Transactions shall be reasonably satisfactory in form and substance to registration of the Initial Purchaser and shall have been executed and delivered Exchange Securities contemplated by the Registration Rights Agreement, all authorizations, approval or consents under the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken Gaming Laws necessary in connection with the issuance of the Securities and the transactions contemplated by this Agreementoffering, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final MemorandumSecurities have been obtained.
(xiih) There The Initial Purchasers shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities received a certificate of the Company, or (B) it is reviewing its rating assigned ’s Chief Financial Officer in form and substance satisfactory to any debt securities the Initial Purchasers dated as of the Company with a view to possible downgrading, or with negative implications, or direction not determinedTime of Execution and the Closing Date.
(xiiii) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee Guarantors and such agreement shall be in full force and effect at all times from and after effect.
(j) On the Closing Date.
, (xvi) The Issuers the Company shall have furnished or caused to be repaid in full all obligations due and payable under the Existing Senior Secured Credit Agreement and (ii) promptly upon receipt of such pay-off letter, the Company shall have furnished to the Initial Purchaser Purchasers a pay-off letter evidencing the same in form and substance reasonably satisfactory to the Initial Purchasers.
(k) On the Closing Date, the Initial Purchasers shall have received the Joinder Agreement duly executed by Affinity Finance and such agreement shall be in full force and effect.
(l) Prior to or concurrently with the issuance of the Securities on the Closing Date, the Senior Secured Credit Agreement shall have been executed, delivered and in full force and effect with terms and conditions as described in the Pricing Disclosure Package and the Final Memorandum.
(m) Except as may be required by the Gaming Authorities in connection with the registration of the Exchange Securities contemplated by the Registration Rights Agreement, all authorizations, approval or consents under the Gaming Laws necessary in connection with the offering, issuance and sale of the Securities have been obtained. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates documents, opinions, certificates, letters and documents schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as the Initial Purchaser they shall have heretofore reasonably requestedrequested from the Issuers or the Guarantors. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Any Issuer or any Guarantor, as applicable, shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchaser to purchase and pay for the Securities is Purchasers hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained hereinin Section 1 hereof or in certificates of any officer of the Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Issuers Company of their respective covenants and agreements hereunder its obligations hereunder, and to each of the following additional conditions unless waived in writing by the Initial Purchaserterms and conditions:
(ia) The no Initial Purchaser shall have received an 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 fact which, in the reasonable opinion of counsel to the Issuers Initial Purchasers, is material or omits to state any fact which is material and necessary to make the statements therein, in form and substance satisfactory to the Initial Purchaser and light of the circumstances under which they were made, not misleading;
(b) on each Delivery Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, shall have furnished to the Initial Purchasers their written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, substantially in the form of Annex 1 attached hereto;
(c) on each Delivery Date, Stoel Rives LLP shall have furnished to the Initial Purchasers their written opinion, as special Oregon counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, substantially in the form of Annex 2 attached hereto;
(d) on each Delivery Date, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, special patent counsel to the Company, shall have furnished to the Initial Purchasers their written opinion, addressed to the Initial Purchasers and dated such Delivery Date, substantially in the form of Annex 3 attached hereto;
(e) on each Delivery Date, AKD ▇▇▇▇▇▇▇ van ▇▇▇▇▇▇ N.V., special Netherlands counsel to the Company, shall have furnished to the Initial Purchasers their written opinion, addressed to the Initial Purchasers and dated such Delivery Date, substantially in the form of Annex 4 attached hereto;
(f) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, shall have furnished to the Initial Purchasers their written opinion, as counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLPPurchasers, addressed to the Initial Purchaser Purchasers and dated such Delivery Date, in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPPurchasers;
(g) at the Delivery Date, counsel there shall not have been, since the date hereof or since the respective dates as of which information is given in the Disclosure Package or the Final Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the Initial Purchaser.
Applicable Time), any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representative shall have received a certificate of the Chief Executive Officer and President of the Company and of the Executive Vice President and Chief Financial Officer of the Company, dated as of the Delivery Date, to the effect that (ivi) The there has been no such material adverse change, (ii) the representations and warranties of the Issuers contained in this Agreement shall be Section 1 hereof are true and correct on with the same force and effect as though expressly made at and as of the Closing Delivery Date; , and (iii) the Issuers shall have Company has complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Delivery Date.;
b. The (h) at the time of the execution of this Agreement, the Representative shall have received from Deloitte & Touche LLP a letter dated such date, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Initial Purchasers containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum;
(i) at the Delivery Date, the Representative shall have received from Deloitte & Touche LLP a letter, dated as of the Delivery Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Delivery Date;
(j) the Indenture shall have been duly executed and delivered by the Company and the Trustee and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee;
(k) the Company and the Representative shall have executed and delivered the Registration Rights Agreement (in form and substance reasonably satisfactory to the Initial Purchasers) and the Registration Rights Agreement shall be in full force and effect;
(l) at the First Delivery Date, the Notes shall have been approved for designation as a PORTAL security;
(m) subsequent to the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Notes, if any, by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes;
(n) on or prior to the date of this Agreement, the Representative shall have received an agreement substantially in the form of Exhibit A attached hereto signed by the persons listed in Schedule IV attached hereto, and shall have received an agreement substantially in the form of Exhibit B attached hereto signed by Philips Business Electronics International B.V.; and
(o) at the Delivery Date, counsel for the Initial Purchasers shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities pursuant Notes as herein contemplated, or in order to this Agreement or evidence the Final Memorandum and the consummation accuracy of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities representations or warranties, or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date fulfillment of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of conditions, herein contained; and all proceedings taken by the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions issuance and sale of the Notes as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchaser and Purchasers. If any condition specified in this Section 5 shall not have been executed fulfilled when and delivered as required to be fulfilled, this Agreement may be terminated by all the respective parties thereto Representative by notice to the Company at any time at or prior to the applicable Delivery Date, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 7, 8 and 9 shall survive any such termination and remain in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Fei Co)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and warranties contained hereinaddressed to the Initial Purchasers, of B▇▇▇▇ ▇▇▇▇ LLP, counsel for the Company and certain of the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers, as set forth in Exhibit A-1 and Exhibit A-2 hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the performance by extent they deem proper, upon certificates of officers of the Issuers Company and the Subsidiary Guarantors and certificates of their respective covenants and agreements hereunder and public officials, copies of which shall have been provided to the following additional conditions unless waived in writing by Initial Purchasers. Additionally, on the Closing Date, the Initial Purchaser:
(i) The Initial Purchaser Purchasers shall have received an opinion a reliance letter, dated as of counsel the Closing Date and addressed to the Issuers Initial Purchasers, of B▇▇▇▇ ▇▇▇▇ LLP, counsel for the Company and certain of the Subsidiary Guarantors, allowing the Initial Purchasers to rely on such legal opinions as B▇▇▇▇ ▇▇▇▇ LLP may deliver to the Trustee in connection with the offering of the Securities.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and ▇addressed to the Initial Purchasers, of C▇▇▇▇▇ ▇▇▇▇▇▇ & ▇R▇▇▇▇▇▇ LLPllp, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering Such counsel may also state that, insofar as such opinionopinion involves factual matters, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(c) On the date hereof, the Initial Purchasers shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLPLLP a comfort letter dated the date hereof, independent public accountants in form and substance satisfactory to counsel for the IssuersInitial Purchasers with respect to the audited, "comfort" letters unaudited and pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date the Closing Date and (b) from information stated in the Chief Financial Officer and Comptroller of the Company, a letter, comfort letter dated the date hereofhereof and similarly address the audited, relating to the financial statements unaudited and other pro forma financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserMemorandum.
(ivd) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Company’s and the Subsidiary Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company and the Subsidiary Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package, there shall not have occurred (i) any changebeen no event or development, or any development involving a prospective changeand no information shall have become known, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, individually or in the opinion of the Initial Purchaseraggregate, has or would materially adversely affect the market for the Securities, or (ii) any event or development relating be reasonably likely to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleadingMaterial Adverse Effect.
(viiie) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder shall not been be enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
c. (f) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), there has none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not occurred (i) any changecovered by insurance, or from any development involving strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a prospective change, in or affecting the general affairs, management, business, condition Material Adverse Effect.
(financial or other), properties, prospects or results of operations g) The Initial Purchasers shall have received certificates of the Company and each of the SubsidiariesSubsidiary Guarantors, taken as a wholedated the Closing Date, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any signed on behalf of the Company or the Subsidiaries applicable Subsidiary Guarantor by its Chairman of the Board, President or any of Vice President and the respective officers or directors Chief Financial Officer, to the effect that
(i) the representations and warranties of the Company or the Subsidiaries that makes any statement made applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the Final Memorandum untrue or that requires Time of Execution and on and as of the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable lawClosing Date, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of and the Company or the Subsidiaries nor any material increase applicable Subsidiary Guarantor has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the consolidated short-term Pricing Disclosure Package (exclusive of any amendment or long-term debt of supplement thereto after the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of businessdate hereof), that are material no event or development has occurred, and no information has become known to the Company and the Subsidiariesor such Subsidiary Guarantor, taken as a wholethat, other than those reflected individually or in the Final Memorandum.aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
e. At (iii) the Closing Date and after giving effect to the consummation sale of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default Securities hereunder has not been enjoined (temporarily or Event of Default (as defined in the Indenturepermanently).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiih) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and the Subsidiary Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xivi) The Securities shall be eligible for clearance and settlement through The Depository Trust Company. On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Issuers business, corporate, legal and financial affairs of the Company and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedCompany. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company and the Subsidiary Guarantors shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The ------------------------------------------------- obligation of the Initial Purchaser to purchase and pay for the Securities is subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers Companies and the Guarantor of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
(i) The Initial Purchaser shall have received an opinion from of Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC, special counsel to the Issuers Companies, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel to the Guarantor and ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, regulatory counsel to the Companies, in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser, dated the Closing Date, substantially in the form of, respectively, Exhibit B-1, Exhibit B-2 and Exhibit B-3 hereto. In rendering such opinions, ----------- ----------- ----------- each of Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC and ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. & ▇▇▇▇▇▇, P.C. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to independent public accountants for the Initial Purchaser Companies "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser.
(iv) The representations and warranties of the Issuers Companies and the Guarantor contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers Companies and the Guarantor shall have complied in all material respects complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company Companies or the Subsidiaries Guarantor or any material increase in the consolidated short-term or long-term debt of the Company Companies or the Guarantor from that set forth or contemplated in the Final Memorandum and the Company Companies and the Subsidiaries Guarantor shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company Companies and the SubsidiariesGuarantor, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated contem plated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers Companies, the Guarantor or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum thatMemorandum, which would result in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securitiesa Material Adverse Effect, or (ii) any event or development relating to or involving any of the Company Companies or the Subsidiaries Guarantor or any of the officers or directors of the Company Companies or the Subsidiaries Guarantor that makes any material statement made in the Final Memorandum untrue or that, in the opinion of the Issuers Companies, the Guarantor and their respective counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer chairman and the chief financial officer of each Company and the CompanyGuarantor, to the effect that:
a. All of the representations and warranties of the Issuers Companies and the Guarantor set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers Companies and the Guarantor have complied in all material respects complied with all agreements and covenants in this Agreement and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers Companies and the Guarantor relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, which would result in a Material Adverse Effect, or (ii) any event or development relating to or involving any of the Company Companies or the Subsidiaries Guarantor or any of the respective officers or directors of the Company Companies or the Subsidiaries Guarantor that makes any material statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. (a) There has not been any change in the capital stock stock, partnership interests or membership interests of the Company Companies or the Subsidiaries Guarantor nor any material increase in the consolidated short-term or long-term debt of the Company Companies or the Guarantor from that set forth or contemplated in the Final Memorandum and (b) the Company Companies and the Subsidiaries Guarantor have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company Companies and the SubsidiariesGuarantor, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the CompanyCompanies, or (B) it is reviewing its rating assigned to any debt securities of the Company Companies with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers Companies and the Guarantor and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivxiii) On or before the Closing Date, the Indenture shall be executed by the Issuers The Companies and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Guarantor shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested.
(xiv) The System Acquisition shall have been consummated and the assets constituting the System (other than the Retained Assets, as defined in the Contribution Agreement) shall have been contributed to the Guarantor and the Guarantor shall have received at least $10.0 million cash in equity from Insight Holdings of Ohio, LLC.
(xv) The Certificate of Formation for the Guarantor shall have been filed and become effective with the Secretary of State of the State of Delaware and the Operating Agreement shall have been adopted.
(xvi) The Preferred Interests and a 25% common membership interest in the Guarantor shall have been issued to Coaxial.
(xvii) The Initial Purchaser shall have received an executed Pledge Agreement. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers Companies and the Guarantor shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Restructuring Agreement (Insight Communications of Central Ohio LLC)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is Notes shall, in its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The Initial Purchaser Pricing Disclosure Package and the Final Memorandum shall have received an opinion of counsel to the Issuers be in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated Representatives. The Issuer shall have complied with Section 5(a) hereof.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of ▇▇▇▇▇▇the Closing Date and addressed to the Initial Purchasers, of Fulbright & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A.L.L.P., substantially counsel for the Issuer, in the form of attached hereto as Exhibit B hereto. In rendering such opinionA, ▇▇▇▇▇▇and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(c) On the Closing Date, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. the Initial Purchasers shall have received the opinion, dated as of the Closing Date and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable addressed to the Initial Purchaser and Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & . ▇▇▇▇▇▇▇ LLP, Esq., Senior Vice President, Legal and Strategic Affairs, of the Issuer, in the form attached hereto as Exhibit B, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(d) On the Closing Date, the Representatives shall have received the opinion, in form and substance satisfactory to the Representatives, dated as of the Closing Date and addressed to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing DatePurchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Purchase Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP LLP, shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiie) The On the date hereof, the Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, PricewaterhouseCoopers LLP a letter, comfort letter dated the date hereof, relating in form and substance satisfactory to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to counsel for the Initial Purchaser and Purchasers. On the Closing Date, the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel Purchasers which shall refer to the Initial Purchasercomfort letter dated as of the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof.
(ivf) The representations and warranties of the Issuers Issuer contained in this Purchase Agreement shall be true and correct in all material respects 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 Issuers statements of the Issuer’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall have complied be true and correct in all material respects with on and as of the date made and on and as of the Closing Date; provided, that, solely for the purposes of determining the satisfaction of the conditions in this Section 7(f), any qualification as to “materiality” or “Material Adverse Effect” contained in any such representation and warranty shall be disregarded; the Issuer shall have performed in all material respects all covenants and agreements and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Pricing Disclosure Package and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum, there shall not have occurred (i) any changebeen no event or development, or any development involving a prospective changeand no information shall have become known, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, individually or in the opinion of the Initial Purchaseraggregate, has or would materially adversely affect the market for the Securities, or (ii) any event or development relating be reasonably expected to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleadingMaterial Adverse Effect.
(viiig) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have Notes hereunder shall not been be enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
c. (h) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Pricing Disclosure Package and Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations none of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries Issuer or any of the respective officers Subsidiaries shall have sustained any loss or directors interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(i) The Initial Purchasers shall have received a certificate of the Company Issuer, dated the Closing Date, signed on behalf of the Issuer by its Chairman of the Board, President or any Senior Vice President and the Subsidiaries that makes Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Issuer contained in this Purchase Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date; provided that, solely for the purposes of determining the satisfaction of the conditions in this Section 7(i)(i), any statement made qualification as to “materiality” or “Material Adverse Effect” contained in any such representation and warranty shall be disregarded, and the Issuer has performed all covenants and agreements and satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and Final Memorandum untrue or that requires the making (exclusive of any addition to amendment or change supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the Final Memorandum in order aggregate, has or would be reasonably likely to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make Material Adverse Effect; and
(iii) the statements made therein not misleading.
d. There sale of the Notes hereunder has not been any change in the capital stock of the Company enjoined (temporarily or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenturepermanently).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiij) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Issuer and such agreement shall be in full force and effect at all times from and after the Closing DateDate until its expiration in accordance with its terms, if any.
(xivk) The Senior Secured Credit Facility shall have been amended by the Amendment which shall be in form and substance reasonably acceptable to the Representatives and the Amended Senior Secured Credit Facilities shall be in full force and effect.
(l) On the Closing Date, the Issuer shall have irrevocably called for redemption all of its 2012 Notes then outstanding and shall have complied with Article 10 of the indenture in respect of such 2012 Notes in order to satisfy and discharge such 2012 Notes. On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Issuers business, corporate, legal and financial affairs of the Issuer and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished or caused to be furnished to theretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedIssuer. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Purchase Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Representatives and counsel to for the Initial PurchaserPurchasers. The Issuers Issuer shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and warranties contained hereinaddressed to the Initial Purchasers, of (i) P▇▇▇▇▇ G▇▇▇▇▇▇▇▇ LLP, counsel for the Company and certain of the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers, as set forth in Exhibit B-1 and Exhibit B-2 hereto and (ii) local counsel for certain of the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers, as set forth in Exhibit C hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the performance by extent they deem proper, upon certificates of officers of the Issuers Company and the Subsidiary Guarantors and certificates of their respective covenants and agreements hereunder and public officials, copies of which shall have been provided to the following additional conditions unless waived in writing by Initial Purchasers.
(b) On the Closing Date, the Initial Purchaser:
(i) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers opinion, in form and substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and ▇addressed to the Initial Purchasers, of C▇▇▇▇▇ ▇▇▇▇▇▇ & ▇R▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering Such counsel may also state that, insofar as such opinionopinion involves factual matters, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(c) The Initial Purchasers shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" LLP a comfort letter or letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivd) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Company’s and the Subsidiary Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company and the Subsidiary Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum, there shall not have occurred (i) any changebeen no event or development, or any development involving a prospective changeand no information shall have become known, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, individually or in the opinion of the Initial Purchaseraggregate, has or would materially adversely affect the market for the Securities, or (ii) any event or development relating be reasonably likely to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleadingMaterial Adverse Effect.
(viiie) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder shall not been be enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
c. (f) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not occurred (i) any changecovered by insurance, or from any development involving strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a prospective change, in or affecting the general affairs, management, business, condition Material Adverse Effect.
(financial or other), properties, prospects or results of operations g) The Initial Purchasers shall have received certificates of the Company and each of the SubsidiariesSubsidiary Guarantors, taken as a wholedated the Closing Date, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any signed on behalf of the Company or the Subsidiaries applicable Subsidiary Guarantor by its Chairman of the Board, President or any of Vice President and the respective officers or directors Chief Financial Officer, to the effect that
(i) the representations and warranties of the Company or the Subsidiaries that makes any statement made applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the Final Memorandum untrue or that requires date hereof and on and as of the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable lawClosing Date, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of and the Company or the Subsidiaries nor any material increase applicable Subsidiary Guarantor has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the consolidated short-term Memorandum (exclusive of any amendment or long-term debt of supplement thereto after the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of businessdate hereof), that are material no event or development has occurred, and no information has become known to the Company and the Subsidiariesor such Subsidiary Guarantor, taken as a wholethat, other than those reflected individually or in the Final Memorandum.aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
e. At (iii) the Closing Date and after giving effect to the consummation sale of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default Securities hereunder has not been enjoined (temporarily or Event of Default (as defined in the Indenturepermanently).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiih) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and the Subsidiary Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xivi) On or before the Closing Date, the Initial Purchasers shall have received the Indenture shall be executed by the Issuers Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect at all times from effect.
(j) The Securities shall be eligible for clearance and after settlement through The Depository Trust Company.
(k) The Securities shall be designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD. On or before the Closing Date.
(xv) The Issuers , the Initial Purchasers and counsel for the Initial Purchasers shall have furnished received such further documents, opinions, certificates, letters and schedules or caused to be furnished instruments relating to the Initial Purchaser such further certificates business, corporate, legal and documents financial affairs of the Company and the Subsidiaries as the Initial Purchaser they shall have heretofore reasonably requestedrequested from the Company. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company and the Subsidiary Guarantors shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is Notes shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion the opinion, dated as of counsel the Closing Date and addressed to the Issuers Initial Purchasers, of DLA Piper LLP (US), counsel for the Company, substantially in the form of Exhibit A hereto. The opinion and advice of DLA Piper LLP (US) described in this Section shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and ▇▇▇▇▇▇ addressed to the Initial Purchasers, of (i) Daugherty, Fowler, Peregrin, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, P.C., FAA counsel to for the Initial PurchaserCompany, dated the Closing Date, of (ii) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇, Oregon counsel for the Company, (iii) K&L Gates LLP, Alaska counsel for the Company, and (iv) Holland & ▇▇▇▇ P.A. LLP, Nevada counsel for the Company, in each case 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, such counsel shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, information as they it may reasonably request to pass upon such matters.
(iic) The On the Closing Date, the Initial Purchaser Purchasers shall have received an the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing DateDate and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiid) The On the date hereof, the Initial Purchaser Purchasers shall have received (ai) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to a comfort letter dated the Initial Purchaser and date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchaser Purchasers with respect to the audited and any unaudited or pro forma financial information in the Pricing Disclosure Package with respect to the Company, (ii) from ▇▇▇▇▇ Horwatch LLP, a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to certain audited and unaudited financial information in the Pricing Disclosure Package with respect to Evergreen and (iii) from GHP ▇▇▇▇▇▇▇, P.C., a comfort letter dated the date hereof in form and substance satisfactory to counsel for the Initial Purchasers with respect to certain audited financial information in the Pricing Disclosure Package with respect to Evergreen. On the Closing Date, the Initial Purchasers shall have received (i) from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & LLP a comfort letter dated the Closing Date, (ii) from ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLPLLP a comfort letter dated the Closing Date, each case in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the applicable comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum and (iii) from GHP ▇▇▇▇▇▇▇, P.C., a comfort letter dated the Closing Date in form and substance satisfactory to counsel for the Initial PurchaserPurchasers with respect to certain audited financial information in the Pricing Disclosure Package with respect to Evergreen.
(ive) The representations and warranties of the Issuers Company and the EAC Guarantor (and, upon the Closing Date, the EHI Guarantors) contained in this Agreement 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 Issuers statements of the Company’s and the EAC Guarantor’s (and, upon the Closing Date, the EHI Guarantors’) officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company and the EAC Guarantor (and, upon the Closing Date, the EHI Guarantors) shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Pricing Disclosure Package and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating subsequent to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has not occurred or would be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers 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) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations representations and warranties of the Company and the SubsidiariesEAC Guarantor (and, taken upon the Closing Date, the EHI Guarantors) contained in this Agreement are true and correct on and as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any Time of Execution and on and as of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable lawClosing Date, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries EAC Guarantor (and, upon the Closing Date, the EHI Guarantors) have no liabilities performed all covenants and agreements and satisfied all conditions on its part to be performed or obligationssatisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, contingent since the date hereof or otherwise (whether or not since the date of the most recent financial statements in the ordinary course Pricing Disclosure Package and the Final Memorandum (exclusive of businessany amendment or supplement thereto after the date hereof), that are material to the Company no event or development has occurred, and the Subsidiariesno information has become known, taken as a wholethat, other than those reflected individually or in the Final Memorandum.aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
e. At (iii) the Closing Date and after giving effect to the consummation sale of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default Notes hereunder has not been enjoined (temporarily or Event of Default (as defined in the Indenturepermanently).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiii) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and the Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivj) On or before the Closing Date, the Indenture Initial Purchasers, the Trustee and the Collateral Agent shall be have received the Security Documents (other than the Mortgages (as hereinafter defined)) executed by the Issuers Company and the Trustee Guarantors and such agreement agreements shall be in full force and effect at all times from and after the Closing Date.
(xvk) The Issuers On the Closing Date, except as otherwise provided for in the Security Documents, the Indenture or the other documents entered into pursuant to the Transactions, the Initial Purchasers, Trustee and the Collateral Agent shall have furnished received all certificates, agreements or caused instruments necessary to perfect the Collateral Agent’s security interest in all of the Collateral including but not limited to, any applicable control agreements, Uniform Commercial Code financing statements in appropriate form for filing and filings with the United States Patent and Trademark Office in appropriate form for filing; each such document executed by the Company and/or each other party thereto, and each such document shall be in full force and effect; and evidence that all of the liens (other than certain Permitted Liens) on the Collateral have been released. The Initial Purchasers shall also have received a perfection certificate (the “Perfection Certificate”) and certified copies of Uniform Commercial Code, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, each of a recent date, listing all effective financing statements, lien notices or comparable documents that name the Company or any Guarantor as debtor and that are filed in those state jurisdictions in which the Company or any Guarantor is organized and such other searches that the Initial Purchasers reasonably deems necessary or appropriate, none of which encumber the Collateral covered or intended to be furnished covered by the Security Documents (other than certain Permitted Liens).
(l) On the Closing Date, the Initial Purchasers, the Trustee and the Collateral Agent shall have received policies or certificates of insurance covering the property and assets of the Company and the Guarantors, which policies or certificates shall be in form and substance reasonably acceptable to the Initial Purchaser Purchasers and reflect the Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Notes, as additional insured and loss payee and shall otherwise bear endorsements of the character reasonably acceptable to the Initial Purchasers.
(m) The Company, the Escrow Agent and the Trustee shall have executed and delivered the Escrow Agreement and the Company shall have deposited, or at the Time of Execution will concurrently deposit the Escrow Property with the Escrow Agent in accordance with the Escrow Agreement.
(n) The Evergreen Acquisition shall be consummated in a manner consistent in all material respects with the description thereof contained in the Offering Memorandum substantially concurrently with the purchase of the Notes by the Initial Purchasers.
(o) The ABL Refinancing shall be consummated and the ABL Revolver shall be in full force and effect, in each case in a manner consistent in all material respects with the description thereof contained in the Offering Memorandum, substantially concurrently with the purchase of the Notes by the Initial Purchasers. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates documents, opinions, certificates, letters and documents schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as the Initial Purchaser they shall have heretofore reasonably requestedrequested from the Company. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion the opinion, dated as of counsel to the Issuers in form Closing Date and substance satisfactory addressed to the Initial Purchaser and Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, substantially the form set forth in Annex B.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President, General Counsel and Corporate Secretary for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, substantially the form set forth in Annex C.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇▇▇, PC, aviation counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, substantially in the form set forth in Annex D.
(d) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial PurchaserPurchasers, dated as of the Closing DateDate and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Bockius LLP, counsel to for the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiie) The On the date hereof and on the Closing Date (i) the Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLPLLP a comfort letter or letters, independent public accountants for the Issuers, "comfort" letters dated the date hereof respective dates of delivery thereof, in form and substance satisfactory to the Closing Date counsel of the Initial Purchasers, with respect to the audited and any unaudited or pro forma financial information in the Pricing Disclosure Package and Final Memorandum and (bii) the Initial Purchasers shall have received from the Chief Financial Officer and Comptroller of the Company, KPMG LLP a comfort letter, dated the date hereofrespective dates of delivery thereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the counsel of the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPPurchasers, counsel with respect to the Initial Purchaseraudited and any unaudited or pro forma financial information of the Dart Joint Venture in the Pricing Disclosure Package and Final Memorandum.
(ivf) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the Time of Execution (but if specified to be given as of a specified date, shall be given as of such date) and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Company's and each Guarantor'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 and each Guarantor shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Pricing Disclosure Package and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company such Pricing Disclosure Package and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendmentsevent or development, alterationsand no information shall have become known, modifications that, individually or waivers of any provision thereof since in the date of this Agreementaggregate, has or would be reasonably likely to have a Material Adverse Effect.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiig) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and the Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivh) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(i) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum except as set forth in the Pricing Disclosure Package and the Final Offering Memorandum, none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to the business of the Company and its Subsidiaries, taken as a whole, 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, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(j) The Initial Purchasers 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 its Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution (but if specified to be given as of a specified date, shall be given as of such date) and on and as of the Closing Date, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently). On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Issuers business, corporate, legal and financial affairs of the Company and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedCompany. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers letters, each in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP(other than with respect to clause (i) below) substantially as set forth in Exhibit A hereto, counsel each dated as of the Closing Date and addressed to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, Purchasers with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, of (i) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Company and the Guarantors, (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ + ▇▇▇▇▇▇▇▇▇ PC, special Colorado counsel for the Company and the Guarantors, (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A., special Florida and Georgia counsel for the Company and the Guarantors, (iv) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., special North Carolina counsel for the Company and the Guarantors, and (v) ▇▇▇▇, ▇▇▇▇▇▇▇ LLP & Cleveland, PLLC, special Washington counsel for the Company and the Guarantors. In rendering such opinions, such counsel shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in rendering their opinionform and substance satisfactory to the Initial Purchasers, ▇dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants counsel for the IssuersInitial Purchasers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, with respect to certain legal matters relating to this Agreement and such other related matters as the financial statements and other financial information contained in the Final Memorandum previously audited by ▇Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to the Initial Purchaserpass upon such matters.
(ivc) On the date hereof, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers, with respect to the audited and any unaudited financial information included or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update, as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information included or incorporated by reference in the Final Memorandum.
(d) [Reserved.]
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers 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 and the Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Pricing Disclosure Package and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall not have occurred (i) any changebeen no event or development, or any development involving a prospective changeand no information shall have become known, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, individually or in the opinion of the Initial Purchaseraggregate, has or would materially adversely affect the market for the Securities, or (ii) any event or development relating be reasonably likely to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleadingMaterial Adverse Effect.
(viiif) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) The Initial Purchaser Purchasers shall have received certificatesa certificate of the Company, dated the Closing Date and Date, signed on behalf of the Company by the chief executive officer its Chief Executive Officer and the chief financial officer of the CompanyChief Financial Officer, to the effect that:
a. All of (i) the representations and warranties of the Issuers set forth Company and the Guarantors contained in this Agreement are true and correct on and as if made of the Time of Execution and on and as of the Closing Date Date, and the Issuers Company and the Guarantors have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.;
b. The issuance and sale of (ii) at the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal actionClosing Date, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to since the date of this Agreement and hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there 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 occurred been enjoined (itemporarily or permanently).
(h) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the The Company and the SubsidiariesGuarantors party thereto shall have executed and delivered the Base Indenture, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and Guarantors shall have been executed and delivered by all the respective parties thereto and shall be in full force and effectFourth Supplemental Indenture, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all each in form and substance reasonably satisfactory to themthe Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof.
(xii) The Company shall apply No registration under the proceeds necessary from Act of the issuance and Securities is required in connection with the sale of the Notes Securities to the Initial Purchasers as described under "Use of Proceeds" in contemplated by this Agreement and the Pricing Disclosure Package and the Final Memorandum.
(xii) There shall Memorandum or in connection with the initial resale of the Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and the Indenture is not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) required to be qualified under the Securities ActTIA, that in each case assuming (i) (A) it is downgrading its rating assigned to any debt securities of that the Company, purchasers who buy such Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) it that the offer or sale of the Securities is reviewing its rating assigned to any debt securities made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the representations of the Company contained in this Agreement and of the Initial Purchasers in Section 8 hereof regarding the absence of a general solicitation in connection with a view the sale of such Securities to possible downgrading, or with negative implications, or direction not determined.
the Initial Purchasers and the initial resale thereof and (xiiiiii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. On or before the Closing Date, the Initial Purchaser Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Registration Rights Agreement executed by business, corporate, legal and financial affairs of the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers Company and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished heretofore reasonably requested from the Company or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedGuarantors. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company or any Guarantor, as applicable, shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (LGI Homes, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchaser Purchasers to purchase and pay for the Securities is any series of Notes shall be subject to the accuracy of the representations and warranties contained hereinof the Company in Section 2 hereof, in each case as of the Execution Date and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Issuers Company of their respective its covenants and agreements hereunder and the consummation of the sale and purchase of each of the other series of Notes and to the following additional conditions unless waived in writing by the Initial Purchaserconditions:
(ia) The Initial Purchaser shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to the effect set forth in Exhibit C hereto.
(b) The Initial Purchasers shall have received opinions, dated the Closing Date, from each of the Company’s local antitrust counsels in Argentina, Brazil, Germany, Russia, Spain, Turkey and Zimbabwe, with respect to each subsidiary of the Company existing in each such country, reasonably satisfactory to the Initial Purchasers.
(c) The Initial Purchasers shall have received an opinion, dated the Closing Date, from each of the Company’s and Standard’s local line bank counsels in Brazil, reasonably satisfactory to the Initial Purchasers.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such Counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such Counsel may rely as to certain matters of Virginia and North Carolina law upon the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP referred to in paragraph (a) above.
(e) The Initial Purchasers shall have received from both Ernst & Young LLP and Deloitte & Touche LLP letters dated, counsel respectively, the Execution Date and the Closing Date, in form and substance satisfactory to the Initial PurchaserPurchasers, containing statements and information of the type ordinarily included in accountants’ comfort letters to underwriters and other placement agents with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained included in the Final Memorandum previously audited and incorporated by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser.
(iv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in reference into the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viiif) The Initial Purchaser Purchasers shall have received certificatesa certificate, dated the Closing Date and signed by Date, of the chief executive officer Chief Executive Officer and the chief financial officer Chief Financial Officer of the Company, Company to the effect that:
a. All of (i) the representations and warranties of the Issuers set forth Company in this Agreement are true and correct as if made on and as of the Closing Date Date; the Final Memorandum, as amended or supplemented as of the Closing Date, does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Issuers have complied in Company has performed all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date.; and
b. The issuance and sale (ii) subsequent to the date as of which information is given in the Final Memorandum, none of the Securities pursuant to this Agreement Company, Standard or the Final Memorandum and the consummation respective subsidiaries of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily either has sustained any material loss or permanently) and no restraining order interference with their respective businesses or properties from fire, flood, hurricane, accident or other injunctive order has been issued calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any legal actionMaterial Adverse Effect, orderor any development involving a prospective Material Adverse Effect, decree except in each case as described in or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenturethereto).
(ixg) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance Subsequent to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effectExecution Date, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement decrease in the rating of any of the Company’s debt securities (including the Notes) by any "“nationally recognized statistical rating organization," ” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) The Company shall have been advised by the National Association of Securities Dealers, Inc. that the Notes have been designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD relating to trading in the PORTAL Market.
(Ai) it is downgrading The Notes shall be eligible for clearance and settlement through the Depositary.
(j) Concurrently with the closing of the Offering, the New Credit Facility, with terms substantially the same as those described in the Final Memorandum, shall have been executed and delivered by the parties thereto. There shall exist as of the Closing Date, no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under the New Credit Facility, and the conditions to the initial borrowings thereunder shall have been satisfied by the Company or waived by the administrative agent thereunder such that the Company shall be eligible to draw down thereunder an amount sufficient, together with the proceeds of the Offering, to consummate the transactions as described under the heading “Use of Proceeds” in the Final Memorandum.
(k) Concurrently with the closing of the Offering, the Merger shall have been consummated in accordance with the Merger Agreement.
(l) Concurrently with the closing of the Offering, each of the Tender Offers shall have expired, and not been terminated or withdrawn by the Company or Standard, as the case may be, in accordance with each of its rating assigned terms.
(m) On or before the Execution Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received from the financial institutions listed in Schedule II hereto executed consents and/or waivers to any debt securities the Merger Agreement, and the transactions contemplated thereunder, with respect to the outstanding indebtedness owed by the Company or Standard, as the case may be, reasonably satisfactory to the Initial Purchasers.
(n) On or before the Execution Date, the Initial Purchasers shall have received certificates of each of the Chief Financial Officer of the Company, or (B) it is reviewing its rating assigned to any debt securities the Treasurer of the Company and the treasurers (or other persons with a view to possible downgradingresponsibility for maintaining credit relationships and authorizing borrowings) of all subsidiaries having local credit facilities with more than $10 million outstanding as of March 31, or with negative implications2005, or direction not determinedsubstantially in the form of Exhibit D hereto.
(xiiio) On or before the Closing Date, the Initial Purchaser Purchasers and Counsel for the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and certificates, documents or other information as the Initial Purchaser shall they may have reasonably requestedrequested from the Company. All such opinions, certificates, letters, schedules, letters and documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to Counsel for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, letters and documents and instruments in such quantities as the Initial Purchaser Purchasers and Counsel for the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Alliance One International, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and warranties contained hereinaddressed to the Initial Purchasers, of (i) P▇▇▇▇▇ G▇▇▇▇▇▇▇▇ LLP, counsel for the Company and certain of the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers, as set forth in Exhibit B-1 and Exhibit B-2 hereto and (ii) local counsel for certain of the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers, as set forth in Exhibit C hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the performance by extent they deem proper, upon certificates of officers of the Issuers Company and the Subsidiary Guarantors and certificates of their respective covenants and agreements hereunder and public officials, copies of which shall have been provided to the following additional conditions unless waived in writing by Initial Purchasers.
(b) On the Closing Date, the Initial Purchaser:
(i) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers opinion, in form and substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and ▇addressed to the Initial Purchasers, of C▇▇▇▇▇ ▇▇▇▇▇▇ & ▇R▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering Such counsel may also state that, insofar as such opinionopinion involves factual matters, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(c) The Initial Purchasers shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" LLP a comfort letter or letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivd) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Company’s and the Subsidiary Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company and the Subsidiary Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated ; 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, and the Company and the Subsidiaries no information shall not have any liabilities become known, that, individually or obligations, contingent or otherwise (whether or not in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final MemorandumMaterial Adverse Effect.
(vie) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
(viif) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received certificates of the Company and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of the Company or the applicable Subsidiary Guarantor by its Chairman of the Board, President or any Vice President and the Chief Financial Officer, to the effect that
(i) the representations and warranties of the Company or the applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Company or the applicable Subsidiary Guarantor has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any no event or development relating has occurred, and no information has become known to or involving any of the Company or the Subsidiaries such Subsidiary Guarantor, that, individually or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue aggregate, has or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition would be reasonably likely to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect; and
(viiiiii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder has not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiih) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and the Subsidiary Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xivi) On or before the Closing Date, the Indenture Initial Purchasers shall be have received the Indenture, as amended by each of the supplemental indentures, executed by the Issuers Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect at all times from effect.
(j) The Securities shall be eligible for clearance and after settlement through The Depository Trust Company.
(k) The Securities shall be designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD. On or before the Closing Date.
(xv) The Issuers , the Initial Purchasers and counsel for the Initial Purchasers shall have furnished received such further documents, opinions, certificates, letters and schedules or caused to be furnished instruments relating to the Initial Purchaser such further certificates business, corporate, legal and documents financial affairs of the Company and the Subsidiaries as the Initial Purchaser they shall have heretofore reasonably requestedrequested from the Company. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company and the Subsidiary Guarantors shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and warranties contained hereinaddressed to the Initial Purchasers, of (i) P▇▇▇▇▇ G▇▇▇▇▇▇▇▇ LLP, counsel for the Company and certain of the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers, as set forth in Exhibit B-1 and Exhibit B-2 hereto and (ii) local counsel for certain of the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers, as set forth in Exhibit C hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the performance by extent they deem proper, upon certificates of officers of the Issuers Company and the Subsidiary Guarantors and certificates of their respective covenants and agreements hereunder and public officials, copies of which shall have been provided to the following additional conditions unless waived in writing by Initial Purchasers.
(b) On the Closing Date, the Initial Purchaser:
(i) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers opinion, in form and substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and ▇addressed to the Initial Purchasers, of C▇▇▇▇▇ ▇▇▇▇▇▇ & ▇R▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering Such counsel may also state that, insofar as such opinionopinion involves factual matters, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(c) On the date hereof, the Initial Purchasers shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, LLP a letter, comfort letter dated the date hereof, relating in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited or pro forma financial information in the Preliminary Memorandum. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall extend to the financial statements and other financial information information, if any, contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to and not contained in the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPreliminary Memorandum.
(ivd) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Company’s and the Subsidiary Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company and the Subsidiary Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Offering Memorandum, there shall not have occurred (i) any changebeen no event or development, or any development involving a prospective changeand no information shall have become known, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, individually or in the opinion of the Initial Purchaseraggregate, has or would materially adversely affect the market for the Securities, or (ii) any event or development relating be reasonably likely to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleadingMaterial Adverse Effect.
(viiie) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder shall not been be enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
c. (f) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not occurred (i) any changecovered by insurance, or from any development involving strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a prospective change, in or affecting the general affairs, management, business, condition Material Adverse Effect.
(financial or other), properties, prospects or results of operations g) The Initial Purchasers shall have received certificates of the Company and each of the SubsidiariesSubsidiary Guarantors, taken as a wholedated the Closing Date, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any signed on behalf of the Company or the Subsidiaries applicable Subsidiary Guarantor by its Chairman of the Board, President or any of Vice President and the respective officers or directors Chief Financial Officer, to the effect that
(i) the representations and warranties of the Company or the Subsidiaries that makes any statement made applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the Final Memorandum untrue or that requires Time of Execution and on and as of the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable lawClosing Date, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of and the Company or the Subsidiaries nor any material increase applicable Subsidiary Guarantor has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the consolidated short-term Offering Memorandum (exclusive of any amendment or long-term debt of supplement thereto after the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of businessdate hereof), that are material no event or development has occurred, and no information has become known to the Company and the Subsidiariesor such Subsidiary Guarantor, taken as a wholethat, other than those reflected individually or in the Final Memorandum.aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
e. At (iii) the Closing Date and after giving effect to the consummation sale of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default Securities hereunder has not been enjoined (temporarily or Event of Default (as defined in the Indenturepermanently).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiih) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and the Subsidiary Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xivi) On or before the Closing Date, the Indenture Initial Purchasers shall be have received the Indenture, as amended or supplemented from time to time, executed by the Issuers Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect at all times from effect.
(j) The Securities shall be eligible for clearance and after settlement through The Depository Trust Company.
(k) The Securities shall be designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD. On or before the Closing Date.
(xv) The Issuers , the Initial Purchasers and counsel for the Initial Purchasers shall have furnished received such further documents, opinions, certificates, letters and schedules or caused to be furnished instruments relating to the Initial Purchaser such further certificates business, corporate, legal and documents financial affairs of the Company and the Subsidiaries as the Initial Purchaser they shall have heretofore reasonably requestedrequested from the Company. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company and the Subsidiary Guarantors shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The ------------------------------------------------- obligation of the each Initial Purchaser to purchase and pay for the Securities is subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserPurchasers:
(i) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, dated the Closing Date, of ▇▇▇▇▇▇, ▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, as they may reasonably request to pass upon such matters. In addition, the Initial Purchasers shall have received a letter or letters permitting them to rely on any opinions rendered by counsel to the Issuers in connection with the Transactions.
(ii) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers.
(iv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company or the Subsidiaries from that set forth or contemplated in the Final Memorandum (other than additional borrowings under existing credit facilities) and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser Purchasers relating to the issuance of the Securities or the Initial Purchaser's Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement Agreement, and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereofthereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, or Lil' Champ not contemplated by the Final Memorandum that, in the opinion of the Initial PurchaserPurchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or Lil' Champ or any of the officers or directors of the Company or the Subsidiaries or Lil' Champ that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser Purchasers and its their counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Companyeach Issuer, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or to such officers' knowledge threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company Company, the Subsidiaries and the SubsidiariesLil' Champ, taken as a whole, not contemplated by the Final MemorandumMemorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries Subsidiaries, or Lil' Champ, or any of the respective officers or directors of the Company or the Subsidiaries Subsidiaries, or Lil' Champ, that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries Subsidiaries, or Lil' Champ, nor any material increase in the consolidated short-term or long-term debt of the Company or Lil' Champ, from that set forth or contemplated in the Final Memorandum (other than borrowings under existing credit facilities) and the Company and the Subsidiaries and Lil' Champ have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company Company, the Subsidiaries and the SubsidiariesLil' Champ, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement. On the Closing Date, the New Credit Facility shall provide for (i) a revolving credit facility of not less than $45 million (with a $20 million sublimit for letters of credit), all of which shall be available on the Closing Date, and (ii) an acquisition facility of not less than $30 million, all of which shall be available to --- the Company on the Closing Date. The Lil' Champ Acquisition, the Equity Investment, the Tender Offer and the Consent Solicitation shall each have been consummated on or prior to the Closing Date.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Initial Purchaser Purchasers and counsel to the Initial Purchaser Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes Notes, together with cash on hand and the proceeds of the Equity Investment, as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser Purchasers such further certificates and documents as the Initial Purchaser Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Issuers shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Sandhills Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase and pay for the Securities is subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers Company of their respective its covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
(i) The Initial Purchaser shall have received an opinion opinion, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A., counsel to the Issuers Company, in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPllp, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇, P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPllp, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPllp, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP llp shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP llp may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the IssuersCompany, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPllp, counsel to the Initial Purchaser.
(iv) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers Company shall have complied in all material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers Transaction Party or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers Company and their its counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have Company has complied in all material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers Transaction Party relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes Securities as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers Company and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Company shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers Company shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is Notes shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion the opinions, dated as of counsel the Closing Date and addressed to the Issuers Initial Purchasers, of (i) Fulbright & Jaworski, LLP, counsel for the Company and Grant Prideco, in substanti▇▇▇▇ ▇▇▇ same form as Exhibit B hereof and (ii) Philip A. Choyce, General Counsel of Grant Prideco, in substantially t▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ Exhibit C hereof and, in each case, as satisfactory to the counsel for the Initial Purchasers.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon & Reindel, counsel for the Initial Purchasers, with resp▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇n l▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters tters relating to this Agreement and such other related matters as the Initial Purchaser 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 they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiic) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for each of the Issuers, "comfort" Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivd) The representations and warranties of the Issuers Company and Grant Prideco contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Company's and Grant Prideco's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company and Grant Prideco shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated ; 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, and the Company and the Subsidiaries no information shall not have any liabilities become known, that, individually or obligations, contingent or otherwise (whether or not in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final MemorandumMaterial Adverse Effect.
(vie) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents Notes hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
(viif) 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 Grant Prideco or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Company and Grant Prideco, dated the Closing Date, signed on behalf of the Company and Grant Prideco by Grant Prideco's 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 and Grant Prideco contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and each of the Company and Grant Prideco have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any no event or development relating to has occurred, and no information has become known, that, individually or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue aggregate, has or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition would be reasonably likely to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect;
(viiiiii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have Notes hereunder has not been enjoined (temporarily or permanently); and
(iv) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandumtheir knowledge, the audited financial statements, and other Basic Documents or financial information included therein, for the Transaction Documents.
c. Subsequent to years ended December 31, 2000, December 31, 1999, December 31, 1998 and December 31, 1997, fairly present in all material respects the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof)condition, there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations and cash flows of the Company Grant Prideco as of, and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreementfor, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture)periods presented therein.
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiih) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by Grant Prideco and each of the Issuers Existing Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivi) On the Closing Date, the Escrow Agreement shall have been executed and delivered by all parties thereto. On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Issuers business, corporate, legal and financial affairs of each of the Company, Grant Prideco and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates Company and documents as the Initial Purchaser shall have reasonably requestedGrant Prideco. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company and Grant Prideco shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion the opinion, dated as of counsel to the Issuers in form Closing Date and substance satisfactory addressed to the Initial Purchaser and Purchasers, of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC, counsel for the Company, in form and substance satisfactory to counsel for the Initial Purchasers and substantially in the form of Exhibit B annexed hereto.
(b) The Initial Purchasers shall have received the opinion of ▇▇▇▇▇▇▇ & Berlin Shereff ▇▇▇▇▇▇▇▇ LLP, counsel in form and substance satisfactory to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Purchasers and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B C annexed hereto. In rendering such opinion, ▇▇▇▇▇▇dated as of the Closing Date and addressed to the Initial Purchasers, ▇▇▇▇▇▇▇▇ with respect to regulatory and ▇▇▇▇▇▇ P.A. related legal matters as the Initial Purchasers may require.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel addressed to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing DatePurchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiid) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ive) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Company’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company and the Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated ; 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, and the Company and the Subsidiaries no information shall not have any liabilities become known, that, individually or obligations, contingent or otherwise (whether or not in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final MemorandumMaterial Adverse Effect.
(vif) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
(viig) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate from the Company, dated the Closing Date, signed on behalf of the Company by the Company’s Chief Executive Officer and President or any Executive Vice President and the Chief Financial Officer, to the effect that
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any no event or development relating to has occurred, and no information has become known, that, individually or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue aggregate, has or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition would be reasonably likely to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect;
(viiiiii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder has not been enjoined (temporarily or permanently); and
(iv) no action shall have been taken and no restraining statute, rule, regulation or order shall have been enacted, adopted or other injunctive issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order has of any federal, state or foreign court shall have been issued and there has not been any legal actionthat would, order, decree or other administrative proceeding instituted or threatened against any as of the Issuers relating to Closing Date, prevent the issuance or sale of the Notes or the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsGuarantees.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and the Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivj) The Initial Purchasers shall have received each of the Collateral Documents executed by the Company and each other party thereto (each a “Relevant Collateral Party”), and each such document shall be in full force and effect. The Initial Purchasers shall have received a perfection certificate, substantially in the form of Exhibit D hereto, duly completed and executed by the Company and the Guarantors.
(k) In accordance with the terms of the Indenture, the Initial Purchasers and the Trustee shall have received each of the following documents, which shall be reasonably satisfactory in form and substance to the Initial Purchasers, the Trustee and each of their respective counsel with respect to the Pledged Collateral, as appropriate:
(i) policies or certificates of insurance as required by each Collateral Document, which policies or certificates shall bear endorsements of the character required by such Collateral Document;
(ii) UCC, judgment and tax lien searches confirming that the personal property comprising a part of the Collateral is subject to no liens other than Permitted Liens;
(iii) stock or member certificates representing Collateral with duly executed stock powers or other instruments of transfer;
(iv) each other document or instrument required to be delivered pursuant to the Collateral Documents;
(v) a certificate of the Company and the Guarantors, dated the Closing Date, signed on behalf of the Company and the Guarantors by the Company’s Chief Executive Officer and President or any Executive Vice President and the Chief Financial Officer, to the effect that: the Company and the Guarantors have performed all covenants and agreements described in this Section 7(k) and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder.
(l) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(m) The Securities shall have been designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD.
(n) The Initial Purchasers shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and each of the Subsidiaries in their respective jurisdiction of organization and their good standing in such other jurisdictions as the Initial Purchasers may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(o) Concurrently with the sale of the Securities by the Company and the Guarantors, the Company shall have terminated all obligations and commitments under the Credit Agreement. The Initial Purchasers shall have received all other documents and agreements entered into and received thereunder in connection with the termination of the Credit Agreement, including termination of any liens or security interests in favor of the lenders thereunder. On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Issuers business, corporate, legal and financial affairs of the Company and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedCompany. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company and the Subsidiaries shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Us Lec Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion (at the request of counsel to the Issuers in form Issuer) the opinion, dated as of the Closing Date and substance satisfactory addressed to the Initial Purchaser Purchasers, of (i) K&L Gates LLP, counsel for the Issuer and the Guarantors attached hereto as Exhibit A-1, and (ii) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, P.C., Nevada counsel for certain of the Guarantors, attached hereto as Exhibit A-2, in each case with respect to certain legal matters relating to this Agreement and certain other related matters in form and substance reasonably satisfactory to counsel for the Initial PurchaserPurchasers. In rendering such opinions, dated the Closing Date, of K&L Gates LLP and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. P.C. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, information as they each may reasonably request to pass upon such matters.
(iib) The On the Closing Date, the Initial Purchaser Purchasers shall have received an the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing DateDate and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiic) The On the date hereof, the Initial Purchaser Purchasers shall have received (ai) from Ernst & Young LLPE&Y a comfort letter dated the date hereof, independent public accountants addressed to the Initial Purchasers in form and substance satisfactory to counsel for the IssuersInitial Purchasers and (ii) from KPMG a comfort letter dated the date hereof, "comfort" letters addressed to the Initial Purchasers in form and substance satisfactory to counsel for the Initial Purchasers. On the Closing Date, the Initial Purchasers shall have received (i) from E&Y a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the Closing Date and (b) from information stated in the Chief Financial Officer and Comptroller of the Company, a letter, comfort letter dated the date hereof, relating to hereof and similarly address the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLPand (ii) from KPMG a comfort letter dated the Closing Date, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPPurchasers, counsel which shall refer to the Initial Purchasercomfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the financial information in the Final Memorandum.
(ivd) [Reserved].
(e) The representations and warranties of the Issuers Issuer and the Guarantors contained in this Agreement shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Issuer’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuer and the Guarantors shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum Pricing Disclosure Package and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating subsequent to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the most recent audited financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results none of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries Parent or any of the respective officers Subsidiaries shall have sustained any loss or directors interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Company Issuer, dated the Closing Date, signed on behalf of the Issuer by its Chairman of the Board, Chief Executive Officer, President or any Senior Vice President and the Subsidiaries that makes any statement made Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Issuer and the Guarantors contained in this Agreement are true and correct at and as of the Time of Execution and on and as of the Closing Date, and the Issuer and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum untrue or that requires the making (exclusive of any addition to amendment or change supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the Final Memorandum in order aggregate, has or would be reasonably likely to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make Material Adverse Effect; and
(iii) the statements made therein not misleading.
d. There sale of the Securities hereunder has not been any change in the capital stock of the Company enjoined (temporarily or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenturepermanently).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiii) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement Indenture executed by the Issuers Issuer and the Guarantors and such agreement agreements shall be in full force and effect at all times from and after the Closing Date.
(xivj) Prior to or concurrently with the issuance of the Securities on the Closing Date, (x) the early settlement under the Tender Offer and Consent Solicitation shall have occurred as described in the Pricing Disclosure Package, the Final Memorandum and the Offer to Purchase and (y) with respect to any Existing Notes that remain outstanding and are not repurchased in connection with the Tender Offer and Consent Solicitation as of the Closing Date, the Issuer shall have delivered to the trustee for the Existing Notes an irrevocable notice of redemption in accordance with the provisions of the Existing Notes Indenture (a copy of which shall have been delivered to the Initial Purchasers) (the “Redemption”).
(k) The Initial Purchasers shall have received a certificate of Parent’s Chief Financial Officer or similar officer relating to certain financial information included in the Pricing Disclosure Package and the Final Memorandum substantially in the form attached hereto as Exhibit B delivered on, and dated and as of, each of the date hereof and the Closing Date. On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Issuers business, corporate, legal and financial affairs of Parent and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedIssuer. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Issuer or any Guarantor, as applicable, shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion the opinion, dated as of counsel to the Issuers in form Closing Date and substance satisfactory addressed to the Initial Purchaser Purchasers, of (i) Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel for the Issuers, in substantially the form attached hereto as Annex A; (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, special Bermuda counsel for the Company, in substantially the form attached hereto as Annex B; (iii) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special regulatory counsel for the Company, in substantially the form attached hereto as Annex C; (iv) White and Case LLP, special English counsel for the Company, in substantially the form attached hereto as Annex D; (v) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPFinger, special Delaware counsel to for the Initial PurchaserCompany, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., in substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ attached hereto as Annex E; and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇(vi) ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, General Counsel for Intelsat Global Service Corporation, in substantially the form attached hereto as Annex F (except, if the Acquisition is not consummated on the Closing Date, the opinion expressed in paragraph (2) thereof may be delivered on the Acquisition Date), and, in each case, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinionPurchasers, dated as of the Closing DateDate and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiic) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for each of the Issuers, "comfort" Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivd) The representations and warranties of the Issuers Company and the Parent Guarantor contained in this Agreement shall be true and correct on and as of the date hereof (but if specified to be given as of a specified date, shall be given as of such date) and on and as of the Closing Date as if made on and as of the Closing Date (but if specified to be given as of a specified date, shall be given as of such 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 Company shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated ; 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, and the Company and the Subsidiaries no information shall not have any liabilities become known, that, individually or obligations, contingent or otherwise (whether or not in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final MemorandumMaterial Adverse Effect.
(vie) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
(viif) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there except as set forth in the Final Memorandum, none of Intelsat, Intelsat Bermuda or any of the Subsidiary Guarantors shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not have occurred (i) any changecovered by insurance, or from any development involving strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a prospective change, in or affecting the general affairs, management, business, condition Material Adverse Effect.
(financial or other), properties, prospects or results of operations g) The Initial Purchasers shall have received a certificate of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificatesParent Guarantor, dated the Closing Date and Date, signed on behalf of each such entity by the chief executive officer and the chief financial officer its Chairman of the CompanyBoard, President or any Senior Vice President, to the effect that:
a. All of (i) the representations and warranties of the Issuers set forth Company and Parent Guarantor contained in this Agreement are true and correct on and as of the date hereof (but if made specified to be given as of a specified date, shall be given as of such date) and on and as of the Closing Date (but if specified to be given as of a specified date, shall be given as of such date), and the Issuers Company and Parent Guarantor have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.;
b. The issuance and sale of (ii) at the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal actionClosing Date, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to since the date of this Agreement and hereof or since the date of the most recent financial statements statements, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any no event or development relating has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to or involving any have a Material Adverse Effect; and
(iii) the sale of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There Securities hereunder has not been any change in the capital stock of the Company enjoined (temporarily or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenturepermanently).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiih) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement and Indenture executed by the Issuers Company and Parent Guarantor and, substantially concurrently or immediately following the consummation of the Acquisition, shall have received the Joinder Agreements and Supplemental Indenture executed by each Subsidiary Guarantor and such agreement agreements shall be in full force and effect at all times from and after the Closing Date.
Date (xiv) On or before except in the Closing Datecase of the Joinder Agreements and Supplemental Indenture, the Indenture shall be executed by the Issuers and the Trustee and such agreement which shall be in full force and effect at all times from and after their execution).
(i) To the extent the Acquisition is substantially concurrently consummated on the Closing Date, the Issuers parties thereto shall have executed and delivered the Credit Documents and the Initial Purchasers shall have received copies thereof. To the extent the Acquisition is substantially concurrently consummated on the Closing Date, each condition to the closing contemplated by the Credit Documents (other than the issuance and sale of the Securities pursuant hereto) will, on or prior to the Closing Date, have been satisfied or waived. To the extent the Acquisition is substantially concurrently consummated on the Closing Date, there shall not exist at, and as of, the Closing Date (after giving effect to the transactions contemplated by this Agreement) any conditions that would constitute a default (or an event that with notice or the lapse of time, or both, would constitute a default) under the Credit Documents.
(xvj) To the extent the Acquisition is substantially concurrently consummated on the Closing Date, Holdings, the Parent Guarantor and the Company and the other parties thereto shall have executed and delivered the Acquisition Documents and the Initial Purchasers shall have received copies thereof. To the extent the Acquisition is substantially concurrently consummated on the Closing Date, each condition to the closing contemplated by the Acquisition Documents (other than the issuance and sale of the Securities pursuant hereto and the initial borrowings under the Credit Documents) will, on or prior to the Closing Date, have been satisfied or waived.
(k) The Issuers Transactions shall be consummated in a manner consistent in all material respects with the description thereof in the Final Memorandum and (unless the Company executes and delivers the Escrow Agreement on the Closing Date) substantially concurrent with the purchase of the Securities by the Initial Purchasers.
(l) At the Closing Date, to the extent the Acquisition is not substantially concurrently consummated, the Company, the Trustee and the Escrow Agent shall have furnished entered into the Escrow Agreement. On or caused to be furnished before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Initial Purchaser such further certificates business, corporate, legal and documents financial affairs of the Issuers as the Initial Purchaser they shall have heretofore reasonably requestedrequested from the Company. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to DBSI and counsel for the Initial Purchaser and counsel to the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser DBSI such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser DBSI shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Intelsat LTD)
Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion the opinion, dated as of counsel to the Issuers in form Closing Date and substance satisfactory addressed to the Initial Purchaser and Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A.Company, substantially in the form of Exhibit B hereto. In rendering such opinion---------
(b) On the Closing Date, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. the Initial Purchasers shall have received the opinion, in form and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel addressed to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing DatePurchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiic) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivd) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Company's and the Subsidiary Guar- antors' officers made pursuant to any certificate delivered in accordance with the provisions hereof shall have complied be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions in all material respects on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such 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 Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chairman of the Board, Chief Executive Officer, President or any Senior Vice President and the Chief Financial Officer to the effect that:
(i) The representations and warranties of the Company and the Subsidiary Guarantors contained in this Agreement are true and correct on and as of the Closing Date, and the Company and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.;
(vii) There shall not have been any change in At the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligationsClosing Date, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to since the date of this Agreement and hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any no event or development relating to has occurred, and no information has become known, that, individually or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue aggregate, has or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition would be reasonably likely to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect; and
(viiiiii) The Initial Purchaser shall have received certificatesTo the knowledge of such officers, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder has not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiih) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) . On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Issuers business, corporate, legal and financial affairs of the Company and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished or caused to be furnished heretofore reasonably requested from the Company. The Company shall furnish to the Initial Purchaser Purchasers such further certificates and documents as the Initial Purchaser shall have reasonably requested. All conformed copies of such documents, opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchaser to purchase and pay for the Securities is Purchasers hereunder are subject to the accuracy of the representations and warranties contained hereinon the part of the Company on the date hereof, to and at the time of purchase, the performance by the Issuers Company of their respective covenants and agreements its obligations hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
precedent (i) The Initial Purchaser shall have received an opinion of counsel provided that to the Issuers in form and substance satisfactory extent that the Company is required to deliver any document to the Initial Purchaser and Purchasers under this Agreement, the delivery of the relevant document to the Representatives or ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering shall be deemed to satisfy such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. condition):
(a) The Company shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable furnish to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Purchasers at the time of purchase, (i) an opinion of Ropes & ▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the Initial Purchasers, and dated the time of purchase with executed copies for each Initial Purchaser, as they may reasonably request and in form and substance satisfactory to pass upon the Representatives, and to the effect set forth in Exhibit B-1 hereto and (ii) with respect to Millipore Ireland B.V., Millipore Cork and Millipore SAS, opinions by applicable foreign local counsel for such mattersentities, addressed to the Initial Purchasers, and dated the time of purchase, with executed copies for each Initial Purchaser, and in form and substance satisfactory to the Representatives, and to the effect set forth in Exhibit B-2 hereto.
(iii) The Initial Purchaser Purchasers shall have received an opinionfrom PricewaterhouseCoopers LLP letters dated, dated respectively, the Closing Datedate of this Agreement, the date of the Final Prospectus and the time of purchase and addressed to the Initial Purchasers (with executed copies for each of the Initial Purchasers) in the forms satisfactory to the Representatives, which letters shall cover, without limitation, the various financial disclosures contained in the Preliminary Prospectus and the Final Prospectus and (ii) the Initial Purchasers shall have received from Deloitte & Touche LLP letters dated, respectively, the date of this Agreement, the date of the Final Prospectus and the time of purchase and addressed to the Initial Purchasers (with executed copies for each of the Initial Purchasers) in the forms satisfactory to the Representatives, which letters shall cover, without limitation, the various financial disclosures of Serologicals contained in the Preliminary Prospectus and the Final Prospectus.
(c) The Initial Purchasers shall have received a certificate of the Company’s Chief Financial Officer dated, respectively, the date of this Agreement, the date of the Final Prospectus and the time of purchase and addressed to the Initial Purchasers (with executed copies for each of the Initial Purchasers) in the form attached as Exhibit C-1 hereto; and (ii) the Initial Purchasers shall have received a certificate of the Serologicals’ Chief Financial Officer dated, respectively, the date of this Agreement, the date of the Final Prospectus and the time of purchase and addressed to the Initial Purchasers (with executed copies for each of the Initial Purchasers) in the form attached as Exhibit C-2 hereto.
(d) The Initial Purchasers shall have received at the time of purchase, the favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letterPurchasers, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and time of purchase in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserRepresentatives.
(ive) The representations and warranties of No amendment or supplement to the Issuers contained in this Agreement shall be true and correct on and as of Pricing Disclosure Package or the Closing Date; the Issuers Final Prospectus shall have complied been made to which the Representatives shall have reasonably objected in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Datewriting.
(vf) There shall not have been any change in At the capital stock time of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in purchase the Final Memorandum and the Company and the Subsidiaries Prospectus shall not have any liabilities or obligationsnot, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof)shall, there shall not have occurred (i) any change, contain an untrue statement of a material fact or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order omit to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein therein, in the light of the circumstances under which they are made, not misleading.
(viiig) The Company will, at the time of purchase deliver to the Initial Purchasers a certificate of its Chief Executive Officer and its Chief Financial Officer, dated the time of purchase, in the form attached as Exhibit D hereto.
(h) The Initial Purchaser Purchasers shall have received certificatescopies, dated the Closing Date and signed duly executed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiariesother party or parties thereto, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xii) The Company shall apply have furnished to the proceeds necessary Representatives such other documents and certificates as to the accuracy and completeness of any statement in the Pricing Disclosure Package or the Final Prospectus as of the time of purchase, as the Representatives may reasonably request.
(j) The Notes shall be eligible for clearance and settlement through Euroclear and Clearstream.
(k) (i) Confirmation from the issuance Irish Financial Services Regulatory Authority that the Final Prospectus is an “approved prospectus” for the purposes of the EU Prospectus Directive (or relevant Irish legislation or regulation relating thereto) and sale (ii) confirmation from the Irish Stock Exchange that it has agreed to list the Notes on or before the time of purchase, subject only to the issue of the Notes as described under "Use at the time of Proceeds" in purchase, or the Final MemorandumRepresentatives being satisfied that such listing will be granted shortly after the time of purchase.
(xiil) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes exist no event or condition which would constitute a default or an event of Rule 436(g) default under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of Notes or the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determinedIndenture.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received (i) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Dechert Price & ▇▇▇▇▇▇ ("DP&R"), counsel for the Issuer which opinion shall be satisfactory to counsel for the Initial Purchasers, and substantially in the form of Exhibit A hereto, (ii) a reliance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of DP&R, allowing the Initial Purchasers to rely on the opinion required to be delivered pursuant to Section 6.3(f) of the Merger Agreement, which opinion shall be satisfactory to counsel for the Initial Purchasers and (iii) a reliance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of DP&R, allowing the Initial Purchasers to rely on the opinion delivered in connection with the execution and delivery of the New Credit Facility, which opinion shall be satisfactory to counsel for the Initial Purchasers;
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., special Arizona counsel to the Issuer and the Company, in form and substance satisfactory to counsel for the Initial Purchasers, to the extent that:
(i) Each of the Issuer and the Company is duly incorporated, validly existing and in good standing in its jurisdiction of incorporation and has all requisite corporate power and authority to own its properties and conduct its business as described in the Final Memorandum. Each of the Issuer and the Company is duly qualified to do business as a foreign corporation in good standing in each of the jurisdictions where the conduct of its business or the ownership of property would require such qualification.
(ii) To the knowledge of such counsel, all of the outstanding shares of capital stock of the Issuer and the Company (including the capital stock issued in connection with the Equity Contribution, the Equity Rollover and the Senior Exchangeable Preferred Stock) have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights, to our knowledge, except for liens under the New Credit Facility.
(iii) Each of the Issuer and the Company has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Securities, the Exchange Securities and the Private Exchange Securities; the Indenture has been duly and validly authorized by each of the Issuer and the Company.
(iv) The issuance of the Notes has been duly and validly authorized by the Issuer and the Company.
(v) The issuance of the Exchange Notes and the Private Exchange Notes has been duly and validly authorized by the Company.
(vi) Each of the Issuer and the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the Company and the Issuer.
(vii) The Guarantees have been duly and validly authorized for issuance and sale to the Initial Purchasers.
(viii) Each of the Issuer and the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and the Assumption Agreement and to consummate the transactions contemplated hereby; this Agreement, the Assumption Agreement and the consummation by the Issuer and the Company of the transactions contemplated hereby and thereby have been duly and validly authorized by each of the Issuer and the Company. This Agreement has been duly executed and delivered by each of the Issuer and the Company.
(ix) To the knowledge of such counsel, the execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement, the Assumption Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchasers) will not conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the articles of incorporation or bylaws (or similar organizational document) of the Issuer or the Company, or (ii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties contained hereinof the Initial Purchasers in Section 8 hereof) any present law or regulation of any governmental agency or authority of the State of Arizona or the Arizona General Business Corporation Act, or (iii) based solely on a review of judgments, decrees, orders and rulings disclosed by the Issuer, the Company and the Arizona Guarantors in officers' certificates, any judgment, decree, order or rule known to such counsel to be applicable to the performance by Issuer or the Issuers Company or any of their respective covenants properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(x) No consent, approval, authorization or order of any governmental authority is required for the issuance and agreements hereunder and to the following additional conditions unless waived in writing sale by the Initial Purchaser:
(i) The Initial Purchaser shall have received an opinion Issuer or the Company of counsel to the Issuers in form and substance satisfactory Securities to the Initial Purchaser Purchasers or the consummation by the Issuer or the Company of the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained.
(xi) Upon the payment of any filing fee and proper filing of the certificate of the Articles of Merger and Plan of Merger with the Arizona Corporation Commission, the Recapitalization Merger will be effective, as contemplated by the Merger Agreement, assuming publication in accordance with the laws of the State of Arizona. Such counsel shall also state that in rendering the opinion required by Section 7(a) and (d) hereof, each of Dechert Price & ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPmay rely upon the opinions provided hereby. Such counsel shall also allow the Initial Purchasers to rely upon the opinions required to be delivered by such counsel pursuant to the terms of the Merger Agreement and in connection with the execution of the New Credit Facility, which opinions shall be in form and substance satisfactory to counsel for the Initial Purchasers.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, dated the Closing DatePurchasers, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, & ▇▇▇▇▇▇▇▇ LLP, special California counsel to PII and Penhall Company (the "California Guarantors"), in form and substance satisfactory to counsel for the Initial Purchasers, to the extent that:
(i) Each of the California Guarantors is validly existing as a corporation under the laws of, and is in good standing in the State of California and has all requisite corporate power and authority to own its properties and conduct its business as described in the Final Memorandum.
(ii) Each of the California Guarantors has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Securities, the Exchange Securities and the Private Exchange Securities; the Supplemental Indenture, which provides that each of the California Guarantors shall thereby become a party to the Indenture, has been duly and validly authorized by each of the California Guarantors.
(iii) The Guarantees have been duly and validly authorized by each of the California Guarantors. The Guarantees to be endorsed on the Exchange Notes and the Private Exchange Notes (the "Exchange Guarantees") have been duly and validly authorized by each of the California Guarantors.
(iv) Each of the California Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Assumption Agreement, which provides that each of the California Guarantors shall thereby become a party to this Agreement and the Registration Rights Agreement, has been duly and validly authorized by the California Guarantors.
(v) Each of the California Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed by each of the California Guarantors.
(vi) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchasers) will not conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the certificate of incorporation or bylaws (or similar organizational document) of either of the California Guarantors, or (ii) (assuming compliance with all applicable state securities or "Blue Sky" laws and compliance of the Reorganization Merger and Certificate of Merger with the requirements of the California Corporations Code and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) the California Corporations Code or any other present law or regulation of any governmental agency or authority of the State of California applicable to the California Guarantors that, in our experience, is generally applicable to transactions in the nature of those contemplated by this Agreement, the Indenture or the Registration Rights Agreement, or (iii) any judgment, decree, order or rule known to such counsel to be applicable to the California Guarantors or any of their 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.
(vii) No consent, approval, authorization or order of any California governmental authority is required for the consummation by the California Guarantors of the transactions contemplated hereby under any present law or regulation of any governmental agency or authority of the State of California applicable to the California Guarantors that, in our experience, is generally applicable to transactions in the nature of those contemplated by this Agreement, the Indenture or the Registration Rights Agreement, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained. Such counsel shall also state that in rendering the opinion required by Section 7(a) and (d) hereof, each of Dechert Price & ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPmay rely upon this opinions provided hereby.
(d) On the Closing Date, the Initial Purchasers shall have received a letter from Irell & ▇▇▇▇▇▇▇ allowing the Initial Purchasers to rely upon their opinions delivered pursuant to the terms of the Merger Agreement and in connection with the execution of the New Credit Facility, which opinions shall be in form and substance satisfactory to counsel for the Initial Purchasers.
(e) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinionPurchasers, dated as of the Closing DateDate and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiif) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young LLP, independent public accountants for each of the Issuers, "comfort" Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivg) The representations and warranties of the Issuers Issuer contained in this Agreement shall be true and correct on and as of the Closing Date as if made on and as of the Closing Date and the representations and warranties of the Company and the Guarantors contained in this Agreement and made in the Assumption Agreement shall be true and correct as of the Closing Date; the Issuers statements of the Issuer's, the Company's and the Guarantors' officers made pursuant to any certificate delivered in accordance with the provisions hereof shall have complied be true and correct on and as of the date made and on and as of the Closing Date; the Issuer, the Company and the Guarantors in all material respects with 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.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated ; 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, and the Company and the Subsidiaries no information shall not have any liabilities become known, that, individually or obligations, contingent or otherwise (whether or not in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final MemorandumMaterial Adverse Effect.
(vih) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
(viii) 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), Penhall Group shall not have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(j) The Initial Purchasers shall have received separate certificates of each of the Issuer, the Company and each Guarantor, dated the Closing Date, signed on behalf of the Issuer, the Company and each Guarantor by its Chairman of the Board, President or any Vice President and the Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuer, the Company or the Guarantors as the case may be, contained in this Agreement are true and correct on and as of the Closing Date and, in the case of the Issuer, on the date hereof, and each of the Issuer, the Company and the Guarantors in all material respects has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or, except as described in the Final Memorandum, since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any no event or development relating has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to or involving any have a Material Adverse Effect; and
(iii) To the knowledge of the Issuer, the Company or the Subsidiaries or any of Guarantor, as applicable, the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder has not been enjoined (temporarily or permanently).
(k) The New Credit Facility and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any each of the Issuers relating other documents necessary to consummate the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final MemorandumMemorandum under the caption "The Transactions" shall have been, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable lawshall concurrently be, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effectthereto, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at and in form and substance consistent with the description thereof contained in the Final Memorandum in all times from and after the Closing Datematerial respects.
(xivl) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Company shall have furnished or caused to be furnished to received the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.proceeds f
Appears in 1 contract
Sources: Purchase Agreement (Penhall Co)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in its sole discretion, be subject to the accuracy of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The Initial Purchaser Purchasers shall have received an the opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers, dated the Closing Date, of Weil, Gotshal & Mang▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A.counsel for the Issuers, substantially in the form of Exhibit B hereto. In rendering such opinion, Weil, Gotshal & Mang▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, information as they it may reasonably request to pass upon such matters.
(iib) The Initial Purchaser Purchasers shall have received an opinionopinion or opinions, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇Lath▇▇ & ▇atk▇▇▇, ▇▇▇ LLP, counsel to unsel for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and certain FCC regulatory matters, and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinionopinion or opinions, Lath▇▇ & ▇▇atk▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall ll have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinionopinion or opinions, Lath▇▇ & ▇▇atk▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion or opinions is limited to matters of New York, California, Delaware corporate and federal law.
(iiic) The Initial Purchaser Purchasers shall have received (a) customary comfort letters from Ernst & Young PricewaterhouseCoopers, LLP and KPMG Peat Marwick LLP, independent public accountants for the Issuersdated September 30, "comfort" letters 1998 and shall have received a customary comfort letter dated the date hereof September 29, 1998, and the Closing Date and (b) a customary bring-down comfort letter from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in each case addressed to the Initial Purchaser and Purchasers, in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial PurchaserPurchasers.
(ivd) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on in all material respects as of the date hereof and as of the Closing Date; the Issuers shall have complied in all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There ; and subsequent to the date of the most recent financial statements in the Offering Circular, there shall not have been any no material adverse change in the capital stock business, condition (financial or other), results of operations or prospects of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the SubsidiariesIssuers, taken as a whole, other than those reflected in except as set forth in, or contemplated by, the Final MemorandumOffering Circular.
(vie) None of the The issuance and sale of the Securities pursuant to this Agreement or any of by the transactions contemplated by any of the other Basic Documents or the Transaction Documents Issuers hereunder shall not be enjoined (temporarily or permanently) on the Closing Date and no restraining order or other injunctive order shall have been issued; and issued or any action, suit or proceeding shall have been commenced with respect to this Agreement or any other transactions hereby, before any court or governmental authority (including, without limitation, the FCC).
(f) Subsequent to the date as of which information is given in the Offering Circular, except as described in or as contemplated by the Offering Circular, none of the Issuers shall have incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business) that are material to the Issuers, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other), results of operations or prospects of the Issuers, taken as a whole, and, other than as contemplated by the Offering Circular, there shall not have been any legal actionchange in the capital stock or long-term indebtedness of any Issuer that is material to the business, ordercondition (financial or other), decree results of operations or other administrative proceeding instituted or threatened against any prospects of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final MemorandumIssuers, the other Basic Documents or the Transaction Documentstaken as a whole.
(viig) Subsequent to the date as of which information is given in the Offering Circular, the conduct of the business and operations of the Company or any of its subsidiaries has not 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 or any of its subsidiaries 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 would not have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Vice President and Assistant Secretary of the Company, to the effect that:
(i) The representations and warranties of the Issuers in this Agreement are true and correct in all material respects as if made on and as of the Closing Date (other than to the extent any such representation or warranty is expressly made to a certain date), and each Issuer has performed in all material respects all covenants and agreements and satisfied, in all material respects, all conditions on their part to be performed or satisfied hereunder, to the extent a party thereto, at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of Offering Circular, except as described in the Offering Circular, no event or events have occurred, nor has any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum information become known that, individually or in the opinion of the Initial Purchaseraggregate, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect;
(viiiiii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have Issuers hereunder has not been enjoined (temporarily or permanently) and no restraining order by any court or other injunctive order has been issued and there has not been any legal actiongovernmental agency or body (including without limitation, orderthe FCC); and
(iv) Subsequent to the respective dates as of which information is given in the Offering Circular, decree except in each case as described in or other administrative proceeding instituted or threatened against any as contemplated by the Offering Circular, none of the Issuers relating has incurred any liabilities or obligations, direct or contingent, that are material to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the SubsidiariesIssuers, taken as a whole, not contemplated by the Final Memorandumor entered into any transactions that, individually or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state aggregate, would have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There Material Adverse Effect; and there has not been any no change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt indebtedness of the Company from Issuers that set forth individually or contemplated in the Final Memorandum and the Company and the Subsidiaries aggregate would have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture)Material Adverse Effect.
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiii) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after on the Closing Date.
(xivj) On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedIssuers. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchaser to purchase and pay for the Securities is subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserPurchasers:
(i) The Initial Purchaser Purchasers shall have received an opinion of Winston & ▇▇▇▇▇▇, special counsel to the Issuers and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., general counsel of the Issuers, in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, dated the Closing Date, substantially in the forms of ▇▇▇▇▇▇EXHIBITS B AND C hereto (with customary qualifications and assumptions), ▇▇as well as letters authorizing the Initial Purchasers to rely on the opinions delivered by counsel to the Issuers in respect of the Transaction Documents. In rendering such opinion, Winston & ▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, as they may reasonably request to pass upon such matters. Such counsel may also state that they express no opinion as to the laws of any jurisdiction other than the federal laws of the United States and the laws of the States of Illinois and New York and the corporate laws of the State of Delaware.
(ii) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPRein- del, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser Purchasers shall have received (a) from Ernst & Young ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers.
(iv) 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 Closing Date; the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser Purchasers relating to the issuance of the Securities or the Initial Purchaser's Purchasers' activities in connection therewith or any other transactions transac- tions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial PurchaserPurchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser Purchasers and its their counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial accounting officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct in all material respects as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or to their knowledge, relating to the Initial Purchaser's Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final MemorandumMemorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists ex- ists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement. On the Closing Date, the New Senior Credit Facility shall provide for (i) revolving credit borrowings of not less than $117 million and (ii) term loan borrowings of not less than $333 million, which $333 million shall be borrowed by the Company on the Closing Date.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Initial Purchaser Purchasers and counsel to the Initial Purchaser Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes and from initial borrowings under the New Senior Credit Facility substantially as described under "Use of Proceeds" in the Final Memorandum.
(xii) [Intentionally omitted].
(xiii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture Initial Purchasers shall be have received the Registration Rights Agreement executed by the Issuers and the Trustee Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser Purchasers such further certificates and documents as the Initial Purchaser Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Issuers shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is Notes shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received (i) the opinion, dated as of the Closing Date and warranties contained hereinaddressed to the Initial Purchasers, of Locke Liddell & Sapp LLP, counsel for the Company, in form and ▇▇▇▇t▇▇▇▇ rea▇▇▇▇bly satisfactory to counsel for the Initial Purchasers, to the performance by effect set forth in Exhibit A, (ii) the Issuers opinion, dated as of their respective covenants the Closing Date and agreements hereunder and addressed to the following additional conditions unless waived Initial Purchasers, of Meilicke Hoffman & Partner, German counsel to the Company, in writing by for▇ ▇▇▇ ▇▇▇▇▇ance reasonably satisfactory to counsel for the Initial Purchaser:Purchasers, to the effect set forth in Exhibit B, (iii) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Bech-Bruun Dragsted Law Firm, Danish counsel to the Company, ▇▇ ▇▇▇▇ ▇nd substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit B, (iv) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Narbarro Nathanson, United Kingdom counsel to the Company, i▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇nce reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit B, and (v) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of MB et Associes, French counsel to the Company, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit B.
(ib) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers opinion, in form and substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon & Reindel, counsel for the Initial Purchasers, with re▇▇▇▇▇ ▇o c▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Cahill Gordon & ▇▇▇▇▇▇▇ LLP Reindel shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇cat▇▇ LLP▇▇▇ other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivd) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Issuers statements of the Company's officers made in any certificate signed by them delivered on or as of the Closing Date in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company shall have complied performed in all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated ; 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, and the Company and the Subsidiaries no information shall not have any liabilities become known, that, individually or obligations, contingent or otherwise (whether or not in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final MemorandumMaterial Adverse Effect.
(vie) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents Notes hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
(viif) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, organized labor dispute, labor slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chief Executive Officer or any President or 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 in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any no event or development relating to has occurred, and no information has become known, that, individually or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue aggregate, has or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition would be reasonably likely to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect; and
(viiiiii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have Notes hereunder has not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiih) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivi) On the Closing Date, the Initial Purchasers shall have received the Escrow and Pledge Agreement and the Securities Account Control Agreement, each dated the Closing Date, executed by the Company, NL Industries, Inc., the trustee identified therein and the securities intermediary identified therein.
(j) On or before the Closing Date, the Indenture Company shall have caused to be delivered the following documents and instruments with regard to the Collateral:
(i) to the Trustee (with a copy to the Initial Purchasers), the Security Agreements and other Security Documents, duly executed by the Issuers Company, together with certificates, if any, representing 65% of the issued and outstanding capital stock or other equity interests of the first-tier Subsidiaries required to be pledged to the Trustee and evidence of all registrations or filings in each of the offices where such agreement registrations or filings are necessary or, in the opinion of the Initial Purchasers, desirable to perfect the Liens created or intended to be created thereby;
(ii) to the Initial Purchasers and the Trustee, evidence satisfactory to them of the payment of all filing fees and taxes in connection with the filings and registrations contemplated in clause (i) above and acknowledgment copies of all such filings; and
(iii) to the Initial Purchasers and the Trustee, evidence as may be reasonably requested that all other actions necessary to perfect and, subject to Liens expressly permitted to exist by the terms of the applicable Security Document, protect the Liens created or intended to be created by the Security Documents have been taken.
(k) The new credit facility (the "New Credit Facility") among Kronos Titan GmbH & Co. OHG, Kronos Europe S.A./N.V., Kronos Titan A/S and Titania A/S (and other subsidiaries of the Company) and the lenders party thereto shall be in full force and effect at effect; all times from conditions to making the initial loans thereunder shall have been satisfied and after the borrowers thereunder shall be in compliance with all the terms thereof. On or before the Closing Date.
(xv) The Issuers , the Initial Purchasers and counsel for the Initial Purchasers shall have furnished received from the Company such further documents, opinions, certificates, letters and schedules or caused to be furnished instruments relating to the Initial Purchaser such further certificates business, corporate, legal and documents financial affairs of the Company and the Subsidiaries as the Initial Purchaser they shall have heretofore reasonably requestedrequested from the Company. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several ------------------------------------------------- obligations of the Initial Purchaser Purchasers to purchase and pay for the Securities is are subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserPurchasers:
(i) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, dated the Closing Date, of ▇▇▇▇▇▇, each of (i) ▇▇▇▇▇▇▇▇ and & ▇▇▇▇▇▇ P.A., counsel to the Notes Issuers, substantially in the form of Exhibit B hereto. In rendering such opinionC hereto and (ii) Weil, ▇▇▇▇▇▇, ▇▇--------- Gotshal & ▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. LLP, counsel to Old Muzak, substantially in the form of Exhibit D hereto. In rendering such opinions, each such counsel shall have --------- received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser Purchasers shall have received (a) from Ernst PricewaterhouseCoopers LLP and Deloitte & Young Touche LLP, independent public accountants for the IssuersCompany and Old Muzak, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial PurchaserPurchasers.
(iv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the Transactions or any of the other transactions contemplated by any of the other Basic Offering Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser Purchasers relating to the issuance of the Securities or the Initial Purchaser's Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Offering Documents or the Transaction Documents.
(viivi) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company Notes Issuers, the Subsidiaries, Old Muzak and the Muzak Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial PurchaserPurchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company Notes Issuers, the Subsidiaries, Old Muzak or the Subsidiaries Muzak Subsidiaries, or any of the their respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Notes Issuers and their counsel or the Initial Purchaser Purchasers and its their counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viiivii) The Initial Purchaser Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Companyeach Issuer (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Issuers such Issuer set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have such Issuer has complied in all material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or or, to such officers' knowledge, threatened against any of the Issuers such Issuer relating to the issuance of the Securities or the Initial Purchaser's Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Offering Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company Notes Issuers, the Subsidiaries, Old Muzak and the Muzak Subsidiaries, taken as a whole, not contemplated by the Final MemorandumMemorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or Notes Issuers, the Subsidiaries, Old Muzak and the Muzak Subsidiaries or any of the their respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ixviii) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement. On the Closing Date, the New Credit Agreement shall provide for revolving credit and term loan borrowings in such amounts as are sufficient to consummate the Transactions to be consummated on the Closing Date and substantially as described in the Final Memorandum.
(ix) The Company shall have received cash equity financing pursuant to the Equity Contribution in such an amount as is sufficient to consummate the Transactions to be consummated on the Closing Date, substantially as described in the Final Memorandum.
(x) The Certificate of Merger with respect to the Merger shall have been filed with the Secretary of State of the State of Delaware and shall have become effective.
(xi) Each of the Proposed Amendments to the Muzak Notes shall have been approved by the requisite percentage of holders of Muzak Notes; simultaneously with the closing of the sale of the Notes by the Notes Issuers, the Notes Issuers shall have accepted for payment and have instructed the depositary with respect thereto to pay to the trustee under the Muzak Indenture the purchase price for all Muzak Notes properly tendered pursuant to the Tender Offer. The Supplemental Indenture shall have been executed by Old Muzak and the trustee under the Muzak Indenture and the terms of the Muzak Indenture shall be as modified by such Supplemental Indenture.
(xii) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Offering Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Initial Purchaser Purchasers and counsel to the Initial Purchaser Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xixiii) The Company Notes Issuers shall apply the proceeds necessary from the issuance and sale of the Notes and from initial borrowings under the New Credit Agreement and the Equity Contribution as described under "Use of Proceeds" in the Final Memorandum.
(xiixiv) There On the Closing Date, the Initial Purchasers shall have received a letter, dated the Closing Date, from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & Zukin Inc. with respect to the solvency of the Issuers as of the Effective Time in form, scope and substance reasonably satisfactory to the Initial Purchasers.
(xv) Since the date of this Agreement, there shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the CompanyCompany or Old Muzak, or (B) it is reviewing its rating assigned to any debt securities of the Company or Muzak with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixvi) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xvxvii) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser Purchasers such further certificates and documents as the Initial Purchaser Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Issuers shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- of the Initial Purchaser to purchase and pay for the Securities is subject to the accuracy of the representations and warranties contained herein, to the performance by the Issuers Companies and the Guarantor of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
(i) The Initial Purchaser shall have received an opinion from of Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC special counsel to the Issuers Companies, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel to the Guarantor and ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, regulatory counsel to the Companies, in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser, dated the Closing Date, substantially in the form of, respectively, Exhibit B-1, ----------- Exhibit B-2 and Exhibit B-3 hereto. In rendering such opinions, each of Dow, ----------- ----------- ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to independent public accountants for the Initial Purchaser Companies "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to the Initial Purchaser.
(iv) The representations and warranties of the Issuers Companies and the Guarantor contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers Companies and the Guarantor shall have complied in all material respects complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company Companies or the Subsidiaries Guarantor or any material increase in the consolidated short-term or long-term debt of the Company Companies or the Guarantor from that set forth or contemplated in the Final Memorandum and the Company Companies and the Subsidiaries Guarantor shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company Companies and the SubsidiariesGuarantor, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers Companies, the Guarantor or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum thatMemorandum, which would result in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securitiesa Material Adverse Effect, or (ii) any event or development relating to or involving any of the Company Companies or the Subsidiaries Guarantor or any of the officers or directors of the Company Companies or the Subsidiaries Guarantor that makes any material statement made in the Final Memorandum untrue or that, in the opinion of the Issuers Companies, the Guarantor and their respective counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of each Company and the CompanyGuarantor, to the effect that:
a. All of the representations and warranties of the Issuers Companies and the Guarantor set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers Companies and the Guarantor have complied in all material respects complied with all agreements and covenants in this Agreement and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers Companies and the Guarantor relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, which would result in a Material Adverse Effect, or (ii) any event or development relating to or involving any of the Company Companies or the Subsidiaries Guarantor or any of the respective officers or directors of the Company Companies or the Subsidiaries Guarantor that makes any material statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. (a) There has not been any change in the capital stock or membership interests of the Company Companies or the Subsidiaries Guarantor nor any material increase in the consolidated short-term or long-term debt of the Company Companies or the Guarantor from that set forth or contemplated in the Final Memorandum and (b) the Company Companies and the Subsidiaries Guarantor have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company Companies and the SubsidiariesGuarantor, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the CompanyCompanies, or (B) it is reviewing its rating assigned to any debt securities of the Company Companies with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers Companies and the Guarantor and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivxiii) On or before the Closing Date, the Indenture shall be executed by the Issuers The Companies and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Guarantor shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested.
(xiv) The System Acquisition shall have been consummated and the assets constituting the System (other than the Retained Assets, as defined in the Contribution Agreement) shall have been contributed to the Guarantor and the Guarantor shall have received at least $10.0 million cash in equity from Insight Holdings of Ohio, LLC.
(xv) The Certificate of Formation for the Guarantor shall have been filed and become effective with the Secretary of State of the State of Delaware and the Operating Agreement shall have been adopted.
(xvi) The Preferred Interests and a 25% common membership interest in the Guarantor shall have been issued to Coaxial.
(xvii) On the Closing Date, the LLC Mirror Notes shall be issued to Coaxial LLC.
(xviii) The Initial Purchaser shall have received an executed Pledge Agreement. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers Companies and the Guarantor shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Coaxial LLC)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall, in their sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser Purchasers shall have received an opinion the opinion, dated as of counsel to the Issuers in form Closing Date and substance satisfactory addressed to the Initial Purchaser and ▇▇▇▇▇▇ Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, special counsel for the Issuers, in form and substance satisfactory to counsel for the Initial PurchaserPurchasers, dated as set forth in Exhibit B hereto.
(b) On the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. Initial Purchasers shall have received the opinion, in form and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable substance satisfactory to the Initial Purchaser Purchasers, dated as of the Closing Date and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel addressed to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing DatePurchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP▇, counsel to for the Initial PurchaserPurchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiic) The Initial Purchaser Purchasers shall have received (a) from Ernst Deloitte & Young LLP, independent public accountants for the Issuers, "comfort" Touche LLP a comfort letter or letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers.
(ivd) The Initial Purchasers shall have received from Ernst & Young LLP a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of each Issuers' officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the Closing Date; the Issuers shall have complied in performed all material respects with all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated ; 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, and the Company and the Subsidiaries no information shall not have any liabilities become known, that, individually or obligations, contingent or otherwise (whether or not in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final MemorandumMaterial Adverse Effect.
(vif) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
(viig) 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 shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of each of the Issuers, dated the Closing Date, signed on behalf of each such Issuer by its Chief Executive Officer, President or any Senior Vice President and the Chief Financial Officer or Treasurer, to the effect that:
(i) The representations and warranties of such Issuer contained in this Agreement are true and correct as if made on and as of the Closing Date, and such Issuer has performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any no event or development relating to has occurred, and no information has become known, that, individually or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue aggregate, has or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition would be reasonably likely to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.Material Adverse Effect; and
(viiiiii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have hereunder has not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiii) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivj) The Initial Purchasers shall have received on or before the Closing Date from the Company a true and correct copy of an amendment to the Credit Facility (as defined in the Final Memorandum) (the "Amendment"), which Amendment shall have been executed by all necessary parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any of the provisions of the Amendment as described in the Final Memorandum. On or before the Closing Date, the Indenture Initial Purchasers and counsel for the Initial Purchasers shall be executed by have received such further documents, opinions, certificates, letters and schedules or instruments relating to the Issuers business, corporate, legal and financial affairs of Holdings and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Subsidiaries as they shall have furnished or caused to be furnished to heretofore reasonably requested from the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requestedIssuers. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to for the Initial PurchaserPurchasers. The Issuers shall furnish to the Initial Purchaser Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchaser to purchase and pay for the Securities is hereunder are subject to the accuracy accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained hereinin Section 1 hereof or in certificates of any officer of the Company or the Subsidiary delivered pursuant to the provisions hereof, to the performance by the Issuers Company of their respective covenants and agreements hereunder its obligations hereunder, and to each of the following additional conditions unless waived in writing by the Initial Purchaserterms and conditions:
(ia) The the Initial Purchaser shall not have received an 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 fact which, in the reasonable opinion of counsel to the Issuers Initial Purchaser, is material or omits to state any fact which is material and necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(b) on each Delivery Date, J▇▇▇▇ Day, shall have furnished to the Initial Purchaser their written opinion, as counsel to the Company, addressed to the Initial Purchaser and dated such Delivery Date, substantially in the form of Annex 1 attached hereto;
(c) on each Delivery Date, P▇▇▇▇▇▇ Coie, LLP, special patent counsel to the Company, shall have furnished to the Initial Purchaser their written opinion, addressed to the Initial Purchaser and dated such Delivery Date, substantially in the form of Annex 2 attached hereto;
(d) on each Delivery Date, H▇▇▇▇, P▇▇▇▇▇ & M▇▇▇▇▇▇▇, P.C. , U.S. Food and Drug Administration regulatory counsel to the Company, shall have furnished to the Initial Purchaser their written opinion, addressed to the Initial Purchaser and dated such Delivery Date, substantially in the form of Annex 3 attached hereto;
(e) Shearman & Sterling LLP, shall have furnished to the Initial Purchaser their written opinion, as counsel to the Initial Purchaser, addressed to the Initial Purchaser and dated such Delivery Date, in form and substance satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPPurchaser;
(f) at the Delivery Date, counsel there shall not have been, since the date hereof or since the respective dates as of which information is given in the Disclosure Package or the Final Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the Initial PurchaserApplicable Time), dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially any material adverse change in the form condition, financial or otherwise, or in the earnings, business affairs or business prospects of Exhibit B hereto. In rendering such opinionthe Company and the Subsidiary considered as one enterprise, ▇▇▇▇▇▇whether or not arising in the ordinary course of business, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated a certificate of the Closing Date, Chief Executive Officer of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency Company and of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, a letterdated as of the Delivery Date, dated the date hereof, relating to the financial statements and other financial information contained in effect that (i) there has been no such material adverse change, (ii) the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser.
(iv) The representations and warranties of the Issuers contained in this Agreement shall be Section 1 hereof are true and correct on with the same force and effect as though expressly made at and as of the Closing Delivery Date; , and (iii) the Issuers shall have Company has complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Delivery Date.;
b. The (g) at the Delivery Date, the Initial Purchaser shall have received a certificate of the Chief Financial Officer of the Company, dated as of the Delivery Date, reasonably satisfactory in form and substance to the Initial Purchaser and counsel for the Initial Purchaser;
(h) at the time of the execution of this Agreement, the Initial Purchaser shall have received from Ernst & Young LLP a letter dated such date, in form and substance satisfactory to the Initial Purchaser, together with signed or reproduced copies of such letter for the Initial Purchaser containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchaser with respect to the financial statements and certain financial information contained in the Offering Memorandum;
(i) at the Delivery Date, the Initial Purchaser shall have received from Ernst & Young LLP a letter, dated as of the Delivery Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Delivery Date;
(j) the Indenture shall have been duly executed and delivered by the Company and the Trustee and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee;
(k) the Company and the Initial Purchaser shall have executed and delivered the Registration Rights Agreement (in form and substance reasonably satisfactory to the Initial Purchaser) and the Registration Rights Agreement shall be in full force and effect;
(l) at the First Delivery Date, the Notes shall have been approved for designation as a PORTAL security;
(m) subsequent to the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Notes, if any, by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes;
(n) on or prior to the date of this Agreement, the Initial Purchaser shall have received an agreement substantially in the form of Exhibit A attached hereto signed by the persons listed in Schedule III attached hereto; and
(o) at the Delivery Date, counsel for the Initial Purchaser shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities pursuant Notes as herein contemplated, or in order to this Agreement or evidence the Final Memorandum and the consummation accuracy of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities representations or warranties, or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date fulfillment of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of conditions, herein contained; and all proceedings taken by the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions issuance and sale of the Notes as herein contemplated shall be reasonably satisfactory in form and substance to the Initial Purchaser and counsel for the Initial Purchaser. If any condition specified in this Section 5 shall not have been executed fulfilled when and delivered as required to be fulfilled, this Agreement may be terminated by all the respective parties thereto Initial Purchaser by notice to the Company at any time at or prior to the applicable Delivery Date, and such termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 7, 8 and 9 shall survive any such termination and remain in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Dendreon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase and pay for the Securities is Notes shall, in its sole discretion, be subject to the accuracy satisfaction or waiver of the representations and warranties contained herein, following conditions on or prior to the performance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial PurchaserClosing Date:
(ia) The On the Closing Date, the Initial Purchaser shall have received an opinion (i) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of L▇▇▇▇ L▇▇▇▇▇▇ & S▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, to the effect set forth in Exhibit A, (ii) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of M▇▇▇▇▇▇▇ H▇▇▇▇▇▇ & Partner, German counsel to the Issuers Company, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, (iii) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of B▇▇▇-▇▇▇▇▇ Dragsted Law Firm, Danish counsel to the Company, in form and substance reasonably satisfactory to the Initial Purchaser, (iv) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of N▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, United Kingdom counsel to the Company, in form and substance reasonably satisfactory to the Initial Purchaser, and (v) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of MB & Associes, French counsel to the Company, in form and substance reasonably satisfactory to the Initial Purchaser.
(b) On the Closing Date, the Initial Purchaser shall have received the opinion, in form and substance satisfactory to the Initial Purchaser Purchaser, dated as of the Closing Date and ▇addressed to the Initial Purchaser, of C▇▇▇▇▇ ▇▇▇▇▇▇ & ▇R▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may reasonably require. In rendering such opinion, ▇C▇▇▇▇▇ ▇▇▇▇▇▇ & ▇R▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iiic) The On the date hereof, the Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the Company, Independent Accountants a letter, comfort letter dated the date hereof, relating in form and substance satisfactory to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to counsel for the Initial Purchaser with respect to the audited and any unaudited financial information in the Preliminary Memorandum. On the Closing Date, the Initial Purchaser shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to for the Initial Purchaser, which shall extend to the financial information, if any, contained in the Final Memorandum and not contained in the Preliminary Memorandum.
(ivd) The representations and warranties of the Issuers Company contained in this Agreement 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 Issuers statements of the Company's officers made in any certificate signed by them delivered on or as of the Closing Date in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company shall have complied performed in all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change ; and, except as described in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Offering Memorandum, there shall not have occurred (i) any changebeen no event or development, or any development involving a prospective changeand no information shall have become known, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, individually or in the opinion of the Initial Purchaseraggregate, has or would materially adversely affect the market for the Securities, or (ii) any event or development relating be reasonably likely to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state have a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleadingMaterial Adverse Effect.
(viiie) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have Notes hereunder shall not been be enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of on the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsClosing Date.
c. (f) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any none of the Company or the Subsidiaries or any of the respective officers Subsidiaries shall have sustained any loss or directors of the Company interference with respect to its business or the Subsidiaries that makes any statement made in the Final Memorandum untrue properties from fire, flood, hurricane, accident or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable lawother calamity, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not covered by insurance, or from any strike, organized labor dispute, labor slowdown or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the ordinary course of business)aggregate, that are material has or would be reasonably likely to the Company and the Subsidiaries, taken as have a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture)Material Adverse Effect.
(ixg) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies a certificate of such papers the Company, dated the Closing Date, signed on behalf of the Company by its Chief Executive Officer or any President or Vice President and documents as they may reasonably request in connection therewiththe Chief Financial Officer, all in form and substance reasonably satisfactory to them.the effect that:
(xii) The representations and warranties of the Company shall apply contained in this Agreement are true and correct on and as of the proceeds necessary from Time of Execution and on and as of the issuance Closing Date, and the Company has performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Notes as described under "Use of Proceeds" in the Final Memorandumhereunder has not been enjoined (temporarily or permanently).
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiih) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xivi) At or on the Closing Date the trustee for the Company's 8 7/8% senior secured notes due 2009 (the "Existing Notes") shall have received from the Company an irrevocable notice of redemption of all such Existing Notes effective as of the time of delivery of and payment for the Notes. Concurrently with the time of delivery of and payment for the Notes by the Initial Purchaser, the Company shall irrevocably deposit or cause to be deposited with such trustee an amount sufficient to pay and discharge the principal of, premium and interest on the Existing Notes to such time.
(j) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers Company shall have furnished or caused to be furnished delivered the following documents and instruments with regard to the Collateral:
(i) to the Trustee (with a copy to the Initial Purchaser), evidence of all registrations or filings in each of the offices where such registrations or filings are necessary or, in the opinion of the Initial Purchaser, desirable to perfect the Liens created or intended to be created thereby;
(ii) to the Initial Purchaser and the Trustee, evidence satisfactory to them of the payment of all filing fees and taxes in connection with the filings and registrations contemplated in clause (i) above and acknowledgment copies of all such further certificates filings; and
(iii) to the Initial Purchaser and documents the Trustee, evidence as may be reasonably requested that all other actions necessary to perfect and, subject to Liens expressly permitted to exist by the terms of the applicable Security Document, protect the Liens created or intended to be created by the Security Documents have been taken. On or before the Closing Date, the Initial Purchaser and counsel for the Initial Purchaser shall have received from the Company such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requestedrequested from the Company. All such documents, opinions, certificates, letters, schedules, documents schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to for the Initial Purchaser. The Issuers Company shall furnish to the Initial Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date for the Optional Shares. The obligation obligations of the Initial Purchaser Purchasers to purchase and pay for the Securities is Purchased Shares are subject to the accuracy of the representations and warranties contained hereinabsence from any certificates, opinions, written statements or letters furnished to the performance by the Issuers Initial Purchasers pursuant to this Section 7 of their respective covenants and agreements hereunder any misstatement or omissions and to the following additional conditions unless waived in writing by the Initial PurchaserPurchasers:
(i) The Initial Purchaser Purchasers shall have received an opinion of counsel to the Issuers in form and substance satisfactory to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers’ Counsel, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇V▇▇▇▇▇ and ▇& E▇▇▇▇▇ P.A.L.L.P., counsel to the Company, addressed to the Initial Purchasers and substantially in the form of Exhibit B hereto. In rendering such opinion.
(ii) The Initial Purchasers shall have received an opinion of counsel in form and substance satisfactory to the Initial Purchasers and Initial Purchasers’ Counsel, ▇▇▇▇▇▇dated the Closing Date, ▇of the S▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. shall have received and may rely upon such certificates and other documents and informationLaw Firm, including one or more opinions of local L.L.C., counsel reasonably acceptable for the Company, addressed to the Initial Purchaser Purchasers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to substantially in the Initial Purchaser, as they may reasonably request to pass upon such mattersform of Exhibit C hereto.
(iiiii) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial PurchaserPurchasers’ Counsel, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser Purchasers may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP .
(iv) The Initial Purchasers shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young KPMG LLP, independent public accountants for the IssuersCompany, "a “comfort" letters ” letter dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller of the CompanyDate, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser Purchasers and ▇Initial Purchasers’ Counsel.
(v) The Initial Purchasers shall have received letters from each of Netherland S▇▇▇▇▇ ▇▇▇▇▇▇ & and C▇▇▇▇▇▇▇ LLP, counsel each being independent petroleum engineers for the Company, dated, respectively, as of the date hereof and as of the Closing Date, addressed to the Initial PurchaserPurchasers and in form and substance satisfactory to the Initial Purchasers and Initial Purchasers’ Counsel, with respect to the estimated quantities of the Company’s reserves, the future net revenues from those reserves and their present value as set forth in the Offering Memorandum (or, if the Offering Memorandum is not in existence, the most recent Preliminary Offering Memorandum) and such related matters as the Initial Purchasers shall reasonably request.
(ivvi) The Initial Purchasers shall have received from each of the Company’s officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit C attached hereto.
(vii) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers Company shall have complied in all material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(viviii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or threatened against any of the Issuers Company or against the Initial Purchaser Purchasers relating to the issuance of the Securities or the Initial Purchaser's Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Final Offering Memorandum, or the other Basic Documents or the Transaction Offering Documents.
(viiix) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and or any of the Subsidiaries, taken as a whole, not contemplated by the Final Offering Memorandum thatthat is, in the opinion judgment of the Initial PurchaserPurchasers, would materially adversely affect so material and adverse as to make it impracticable or inadvisable to proceed with the market for offering of the SecuritiesSecurities on the terms and in the manner contemplated by the Offering Documents, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the Subsidiaries, or any of their respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Offering Memorandum untrue or that, in the opinion of the Issuers Company and their its counsel or the Initial Purchaser Purchasers and its counsel, requires Initial Purchasers’ Counsel require the making of any addition to or change in the Final Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viiix) The Initial Purchaser Purchasers shall have received certificates, certificates dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, Company (in their capacities as such) to the effect that:
a. All of the representations and warranties of the Issuers Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part Company to be performed performed, satisfied or satisfied at complied with hereunder on or prior to the Closing DateDate have been duly performed, satisfied or complied with.
b. The issuance and sale of the Securities Purchased Shares pursuant to this Agreement or the Final Offering Memorandum and the consummation of the transactions contemplated by the Transaction Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or or, to such officers’ knowledge, threatened against any of the Issuers Company relating to the issuance of the Securities or the Initial Purchaser's Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, Offering Memorandum or the other Basic Documents or the Transaction Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and or any of the Subsidiaries, taken as a whole, not contemplated by the Final Offering Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the Subsidiaries, or any of their respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Offering Memorandum untrue or that requires the making of any addition to or change in the Final Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ixxi) Each of the Transaction Offering Documents and each other agreement or instrument executed in connection with the Transactions transactions contemplated hereby and thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xxii) All proceedings taken in connection with the issuance of the Securities Purchased Shares and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers’ Counsel. The Initial Purchaser Purchasers and counsel to the Initial Purchaser Purchasers’ Counsel shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xixiii) The Company Purchased Shares shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandumhave been approved for trading on PORTAL.
(xiixiv) There Since the date of this Agreement, there shall not have been any announcement by any "“nationally recognized statistical rating organization," ” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiiixv) On or before the Closing Date, the Initial Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company, and such agreement shall be in full force and effect at all times from and after the Closing Dateeffect.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xvxvi) The Issuers Company shall have furnished or caused to be furnished to the Initial Purchaser Purchasers such further certificates and documents as the Initial Purchaser Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser Purchasers and counsel to the Initial PurchaserPurchasers. The Issuers Company shall furnish to the Initial Purchaser Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchaser Purchasers to purchase and pay for the Securities is shall be subject to the accuracy of the representations and warranties contained hereinof the Issuer and the Guarantors in Section 3 hereof, in each case on and as of the Applicable Time and on and as of the applicable Closing Date, as if made on and as of the Applicable Time and on and as of the applicable Closing Date, to the accuracy of the statements of officers of the Issuer and the Guarantors made pursuant to the provisions hereof, to the performance by the Issuers Issuer and the Guarantors of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaserconditions:
(ia) The Initial Purchaser At each Closing Date, the Issuer and the Guarantors shall have received an opinion of counsel to the Issuers in form and substance satisfactory furnish to the Initial Purchaser Purchasers the opinion and disclosure letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Issuer and the Guarantors, addressed to the Representative and dated such Closing Date, substantially in the form of Exhibit A-1 and Exhibit A-2 hereto.
(b) At each Closing Date, the Issuer and the Guarantors shall furnish to the Initial Purchaser, dated Purchasers the Closing Date, opinion of ▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇ special Maryland counsel for the Issuer and ▇▇▇▇▇▇ P.A.NRF, addressed to the Representative and dated such Closing Date, substantially in the form of Exhibit B hereto. In rendering such opinion.
(c) On the date of this Agreement and at each Closing Date, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ P.A. the Initial Purchasers shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and ▇from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Ernst & Young LLP letters dated the respective dates of delivery thereof and addressed to the Representative, in form and substance satisfactory to the Representative, containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the consolidated financial statements of NRF and ▇▇▇▇▇▇▇, as applicable, incorporated by reference in the Disclosure Package and the Final Circular, and certain financial information of NRF and ▇▇▇▇▇▇▇, as applicable, incorporated by reference in the Disclosure Package and the Final Circular, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Initial Closing Date and each Option Closing Date (if applicable) shall use a “cut-off” date no more than three business days prior to such Initial Closing Date or such Option Closing Date, as the case may be.
(d) At each Closing Date, the Initial Purchasers shall have received the favorable opinion of and a negative assurance letter of Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel to for the Initial PurchaserPurchasers, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(iii) The Initial Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Issuers, "comfort" letters dated the date hereof and the Closing Date and (b) from the Chief Financial Officer and Comptroller favorable opinion of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to the Initial Purchaser and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special structuring counsel for the Initial Purchasers as to the validity of the Securities, each addressed to the Representative and each dated such Closing Date, in form and substance satisfactory to the Representative. In addition, at each Closing Date, the Initial Purchasers shall have received (i) the favorable opinions of Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, as to certain federal income tax matters with respect to NRF, substantially in the form of Exhibit C-1 hereto, and as to certain federal income tax matters with respect to NRE, substantially in the form of Exhibit C-2 hereto, and (ii) the favorable opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, as to certain matters relating to the Initial Purchaser.
(iv) The representations Investment Company Act with respect to NRF and warranties the Issuer, substantially in the form of the Issuers contained in this Agreement shall be true and correct on and as of the Closing Date; the Issuers shall have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior Exhibit D hereto, each addressed to the Representative and dated such Closing Date.
(ve) There No amendment or supplement to the Disclosure Package and the Final Circular shall not have been any change filed to which the Representative shall have objected in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material writing prior to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandumfiling thereof.
(vif) None Between the time of the issuance and sale execution of the Securities pursuant to this Agreement or any of and the transactions contemplated by any of the other Basic Documents Initial Closing Date or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and Option Closing Date, if any, there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction DocumentsMaterial Adverse Change.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viiig) The Initial Purchaser Purchasers shall have received certificatesreceived, dated at the Initial Closing Date and signed by the chief Option Closing Date, if any, a certificate of two of NRF’s executive officer and the chief financial officer of the Companyofficers, to the effect that:
a. All of (i) the representations and warranties of the Issuers set forth NRF in this Agreement are true and correct correct, as if made on and as of the Initial Closing Date and the Issuers Option Closing Date, as applicable, and the Issuer and the Guarantors have complied in all material respects with all agreements of their respective obligations hereunder and satisfied all of the conditions on their part to be performed or satisfied at or prior to the at the Initial Closing Date and the Option Closing Date., as applicable; and
b. The issuance (ii) subsequent to the respective dates as of which information is given in the Disclosure Package and sale of the Securities pursuant to this Agreement or the Final Memorandum Circular, and except as may be otherwise disclosed in the Disclosure Package and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and Final Circular, there has not been (A) any legal actionMaterial Adverse Change, order, decree or other administrative proceeding instituted or threatened against (B) any of the Issuers relating transaction that is material to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final MemorandumIssuer, the other Basic Documents Guarantors and their respective subsidiaries taken as a whole, (C) any obligation, direct or the Transaction Documents.
c. Subsequent contingent, that is material to the date of this Agreement Issuer, the Guarantors and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiariestheir respective subsidiaries, taken as a whole, not contemplated incurred by the Final MemorandumIssuer, or (ii) any event or development relating to or involving any of the Company Guarantors or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable lawSubsidiaries, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been (D) any change in the capital stock or outstanding indebtedness of the Company Issuer, the Guarantors or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from Subsidiary that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are is material to the Company Issuer, the Guarantors and the Subsidiariesany of their respective subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect or (E) any loss or damage (whether or not insured) to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default Properties which has been sustained or Event of Default (as defined in the Indenture)will have been sustained which would reasonably be expected to have a Material Adverse Effect.
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xh) All corporate and partnership proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents Agreement and the Transaction Documents Indenture and all documents and papers legal matters relating thereto shall be reasonably satisfactory to counsel to the Initial Purchaser Purchasers and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory therewith to themenable them to pass upon such legal matters.
(xii) The Company shall apply Issuer and the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser Guarantors shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xiv) On or before the Closing Date, the Indenture shall be executed by the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser Purchasers such further other documents and certificates as to the accuracy and documents completeness of any statement in the Disclosure Package and the Final Circular, the representations, warranties and statements of NRF contained herein, and the performance by the Issuer and the Guarantors of their covenants contained herein, and the fulfillment of any conditions contained herein, as of the Initial Closing Date or any Option Closing Date, as the Initial Purchaser shall Purchasers have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects requested prior to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchaser shall reasonably requestdate hereof.
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