Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall be subject to the satisfaction or waiver, in the sole discretion of the Representative, of the following conditions on or prior to the Closing Date: (a) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto. (b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum. (d) 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 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 performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect. (e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date. (f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that: (i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; (ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and (iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently). (h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 2 contracts
Sources: Purchase Agreement (Targa Resources Partners LP), Purchase Agreement (Targa Resources Partners LP)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinionopinions, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇(i) ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the IssuersCompany 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. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the matters described in Annex C heretoextent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPllp, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering Such counsel may also state that, insofar as such opinionopinion involves factual matters, ▇▇▇▇▇▇they have relied, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP 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 received and may rely upon such certificates and other documents and information as it may reasonably request been provided to pass upon such mattersthe Initial Purchasers.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants 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 audited, unaudited and any unaudited pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants 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, date the information stated in the comfort letter dated the date hereof and similarly address the audited audited, unaudited and any unaudited pro forma financial information contained in the Final Memorandum.
(d) 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 statements of the IssuersCompany’s and the Subsidiary Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final MemorandumPackage, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 certificatescertificates 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 Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers and Company or the Guarantors applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and Company or the Guarantors have applicable Subsidiary Guarantor has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(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 knownknown to the Company or such Subsidiary Guarantor, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and the Subsidiary Guarantors and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture, as amended or supplemented from time to time, executed by the Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect.
(j) The Securities shall be eligible for clearance and settlement through The Depository Trust Company. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company and the Subsidiary Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 2 contracts
Sources: Purchase Agreement (Omega Healthcare Investors Inc), Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinionopinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of (i) ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ L.L.P.LLP, counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, and substantially as to the matters described set forth in Annex C hereto.B and (ii) Winston & ▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, and substantially as set forth in Annex C.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects; the statements of the IssuersCompany’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct correct, in all material respects, on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 expected to have a Material Adverse Effect.
(g) The Initial Purchasers Representative shall have received certificatesa certificate from the Company and each Guarantor, dated the Closing Date, signed on behalf of the Company or such Guarantor by the its (i) Chief Executive Officer Officer, President or any Senior Vice President or executive officer performing similar functions with respect to such Guarantor and (ii) the Chief Financial Officer of each of the Issuersor executive officer performing similar functions with respect to such Guarantor, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors Company or such Guarantor contained in this Agreement are true and correct correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects, and each of the Issuers and the Guarantors Company or such Guarantor have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(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 knownknown to the Company or such Guarantor, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect; and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement and the Indenture executed by the Issuers Company, the Guarantors and the Guarantors Trustee and such agreement shall be in full force and effecteffect at all times from and after the Closing Date.
(i) The Notes shall be eligible for clearance and settlement through The Depository Trust Company. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Representative and counsel for the Initial Purchasers. The Issuers Company and the Guarantors shall furnish to the Initial Purchasers Representative such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers Representative shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes Securities shall be subject to the satisfaction or waiveraccuracy of the representations and warranties of the Company and the Guarantors in Section 3 hereof, in the sole discretion each case on and as of the Representative, Applicable Time and on and as of the following conditions applicable Closing Date, as if made on or prior and as of the Applicable Time and on and as of the applicable Closing Date, to the Closing Dateaccuracy of the statements of the Company’s and the Guarantors’ officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their respective covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, The Company shall furnish to the Initial Purchasers shall have received the opinion, dated as of at the Closing Date and addressed to the Initial Purchasers, Option Closing Date the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P.LLP, corporate counsel for the IssuersCompany, in form the Guarantors and substance satisfactory to counsel for the Initial PurchasersSubsidiaries, as addressed to the matters described Representatives and dated the Closing Date and the Option Closing Date, substantially in Annex C the form of Exhibit A hereto.
(b) The Company shall furnish to the Initial Purchasers at the Closing Date and the Option Closing Date the opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Guarantors, addressed to the Representatives and dated the Closing Date and the Option Closing Date, substantially in the form of Exhibit B hereto.
(c) On the date of this Agreement and at the Initial Closing DateDate and the Option Closing Date (if applicable), the Initial Purchasers shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated the opinionrespective dates of delivery thereof and addressed to the Representatives, in form and substance satisfactory to the Initial PurchasersRepresentatives, dated as containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Financial Statements and certain financial information of the Company, the Guarantors and the Subsidiaries included in the Disclosure Package and the Final Circular, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Initial Closing Date and addressed the Option Closing Date (if applicable) shall use a “cut-off” date no more than three business days prior to such Initial Closing Date and the Option Closing Date, as the case may be.
(d) The Initial Purchasers shall have received at the Initial Purchasers, Closing Date and the Option Closing Date the favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ and a negative assurance letter from Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect addressed to certain legal matters relating the Representatives and dated the Initial Closing Date and the Option Closing Date, in form and substance satisfactory to this Agreement and such other related matters as the Initial Purchasers. In addition, the Initial Purchasers may reasonably require. In rendering such opinionshall have received at the Initial Closing Date and the Option Closing Date, ▇▇▇▇▇▇, ▇▇▇▇ (i) the favorable opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereofLLP, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, 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 as to certain federal income tax matters, substantially in the form of Exhibit C hereto, and (ii) the favorable opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, to the comfort letter effect that the Company and the Guarantors are not, and the transactions contemplated by this Agreement will not cause the Company or the Guarantors to become, an “investment company” as such term is defined under the Investment Company Act, substantially in the form of Exhibit D hereto, each addressed to the Representatives and dated the date hereof Initial Closing Date and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final MemorandumOption Closing Date.
(de) 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 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 performed all covenants and agreements and satisfied all conditions on their part to be performed No amendment or satisfied hereunder at or prior supplement to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there Circular shall have been no event or development, and no information filed to which the Representatives shall have become known, that, individually or objected in writing prior to the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Datefiling thereof.
(f) Subsequent to Between the date time of the most recent financial statements in the Pricing Disclosure Package execution of this Agreement and the Final Memorandum (exclusive of Initial Closing Date or the Option Closing Date, there shall not have been any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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 EffectChange.
(g) At the Initial Closing Date, the Underlying Shares shall have been accepted for listing on the NYSE, subject to notice of issuance, and have been reserved for issuance by NRF.
(h) The Initial Purchasers shall have received certificatesreceived, dated at the Initial Closing Date and the Option Closing Date, signed by the Chief Executive Officer or Chief Financial Officer a certificate of each two of the IssuersNRF’s executive officers, to the effect that:
(i) the representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct correct, as if made on and as of the Time of Execution Initial Closing Date and on and as of the Option Closing Date, as applicable, and each of the Issuers Company and the Guarantors have performed complied with all covenants and agreements of their respective obligations hereunder and satisfied all of the conditions on their part to be performed or satisfied hereunder at or prior to the at the Initial Closing Date and the Option Closing Date;, as applicable; and
(ii) at subsequent to the Closing Date, since the date hereof or since the date respective dates as of the most recent financial statements which information is given in the Pricing Disclosure Package and the Final Memorandum Circular, there has not been (exclusive of A) any amendment Material Adverse Change, (B) any transaction that is material to the Company or supplement thereto after the date hereof)Guarantors and their respective subsidiaries taken as a whole, no event (C) any obligation, direct or development has occurredcontingent, that is material to the Company and no information has become knownits subsidiaries, thattaken as a whole, individually incurred by the Company, the Guarantors or the Subsidiaries, (D) any change in the aggregatecapital stock or outstanding indebtedness of the Company, the Guarantors or any Subsidiary that is material to the Company, the Guarantors and any of their respective subsidiaries, taken as a whole, or (E) any loss or damage (whether or not insured) to the Properties which has been sustained or will have been sustained which would reasonably be reasonably likely expected to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(hi) On or prior to the Initial Closing Date, the Initial Purchasers shall have received an agreement substantially in the Registration Rights Agreement executed form of Exhibit E hereto signed by the Issuers persons listed in Schedule III hereto.
(j) All corporate and partnership proceedings taken in connection with the issuance of the Securities and the Guarantors transactions contemplated by this Agreement, the Transaction Documents and such agreement all legal matters relating thereto shall be in full force and effect. On or before the Closing Date, reasonably satisfactory to counsel to the Initial Purchasers and counsel for to the Initial Purchasers shall have received copies of such further documents, opinions, certificates, letters papers and schedules or instruments relating documents as they may reasonably request in connection therewith to the business, corporate, enable them to pass upon such legal and financial affairs of the Issuers matters.
(k) The Company and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish furnished to the Initial Purchasers such conformed copies other documents and certificates as to the accuracy and completeness of such documentsany statement in the Disclosure Package and the Final Circular, opinionsthe representations, certificateswarranties and statements of the Company and the Guarantors contained herein, lettersand the performance by the Company and the Guarantors of their covenants contained herein, schedules and instruments in such quantities the fulfillment of any conditions contained herein, as of the Initial Closing Date or the Option Time, as the Initial Purchasers shall reasonably requesthave requested prior to the date hereof.
Appears in 1 contract
Sources: Purchase Agreement (Northstar Realty Finance 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 Purchasers Purchaser to purchase and pay for the Notes shall be are subject to the satisfaction absence from any certificates opinions, written statements or waiver, in letters furnished to the sole discretion Initial Purchaser pursuant to this Section 7 of the Representative, of any misstatement or omission and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(ai) On The Initial Purchaser shall have received an opinion in form and substance reasonably satisfactory to the Initial Purchaser, dated the Closing Date, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Company covering the matters set forth on Exhibit B hereto.
(ii) The Initial Purchasers Purchaser shall have received the opinion, dated as of the Closing Date an opinion in form and addressed substance reasonably satisfactory to the Initial PurchasersPurchaser, dated the Closing Date, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., intellectual property counsel to the Company, covering the matters set forth on Exhibit C hereto.
(iii) The Initial Purchaser shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for to the Initial PurchasersPurchaser, dated the Closing Date, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may require.
(iv) The Initial Purchaser shall have received from Deloitte & Touche LLP, independent public accountants for the Company, on each of the date hereof and the Closing Date, in form and substance reasonably require. In rendering such opinion, satisfactory to the Initial Purchaser and ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request LLP, counsel to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereofPurchaser, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter letters dated the date hereof and reaffirm the Closing Date confirming that is an independent public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or update as of a more recent date, the information stated incorporated by reference in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Offering Memorandum.
(dv) The Initial Purchaser shall have received from each of the officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially the form of Exhibit D hereto.
(vi) The representations and warranties of the Issuers and the Guarantors 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 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 performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, or the other Offering Documents.
(viii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the date business, condition (financial or other), properties, or results of operations of the most recent financial statements Company or the Subsidiary, not disclosed in such Pricing Disclosure Package the Offering Memorandum that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the Final offering of the Securities on the terms and in the manner contemplated by the Offering Memorandum, there shall have been no or (ii) any event or developmentdevelopment relating to or involving the Company or the Subsidiary, and no information shall have become known, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, individually or in the aggregateopinion of the Company and its counsel or the Initial Purchaser and their counsel, has requires the making of any addition to or would be reasonably likely change in the Offering Memorandum in order to have state a Material Adverse Effectmaterial fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(eix) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Notes hereunder shall pursuant to this Agreement and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not be been enjoined (temporarily or permanently) on and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Closing DateCompany relating to the issuance of the Securities or the Initial Purchaser’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
(f) c. 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 Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none there has not occurred (i) any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, condition (financial or other), properties, or results of operations of the Issuers nor Company or the Subsidiary, not contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving the Company or the Subsidiary, or any of the Material Subsidiaries shall have sustained their respective officers or directors that makes 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 material statement made in the aggregateOffering Memorandum untrue or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, has in light of the circumstances under which they are made, not misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Memorandum, there exists no Default or would be reasonably likely to have a Material Adverse EffectEvent of Default (as defined in the Indenture).
(gx) The Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers Purchaser and shall have received certificates, dated been executed and delivered by all the Closing Date, signed by respective parties thereto (other than the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
(iInitial Purchaser) the representations and warranties of each of the Issuers shall be in full force and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Dateeffect, and each there shall have been no material amendments, alterations, modifications or waivers of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or any provision thereof 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; andthis Agreement.
(iiixi) All proceedings taken in connection with the sale issuance of the Notes hereunder has not been enjoined (temporarily or permanently)and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser.
(hxii) The Notes shall have been approved for trading on PORTAL.
(xiii) 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.
(xiv) On or before the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors Company and such agreement shall be in full force and effect. On .
(xv) The Company shall have furnished or before caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested.
(xvi) At the Closing Date, the Initial Purchasers Company and counsel for the Trustee shall have entered into the Indenture and the Initial Purchasers Purchaser shall have received such further documentscounterparts, opinionsconformed as executed, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers thereof and the Guarantors as they Notes shall have heretofore reasonably requested from been duly executed and delivered by the IssuersCompany and duly authenticated by the Trustee. All such documents, opinions, certificates, letters, schedules schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for to the Initial PurchasersPurchaser. The Issuers Company shall furnish to the Initial Purchasers Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules schedules, documents and instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Curagen Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinionopinions, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇(i) ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.Day, counsel for the IssuersCompany and the Guarantor in substantially the form of Exhibit A attached hereto and (ii) the General Counsel or Associate General Counsel of the Company and the Guarantor, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) 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 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 in all material respects on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantor shall have performed in all material respects all covenants and agreements and satisfied all conditions in all material respects on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become knownknown with respect to the business condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, thattaken as a whole, individually or in the aggregate, that has or would could reasonably be reasonably likely expected to have result in a Material Adverse Effect.
(e) The sale of the Notes Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent historical financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 slowdown or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interferenceinterference has or could reasonably be expected to result in, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received certificatesa certificate from each of the Issuers, dated the Closing Date, signed on behalf of the Company and the Guarantor by its Chairman of the Board, President, General Counsel or any Vice President and the Chief Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the The representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution date hereof and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed in all material respects all covenants and agreements and satisfied all conditions in all material respects on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at At the Closing Date, since the date hereof or since the date of the most recent historical 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, that has or would could reasonably be reasonably likely expected to have result in a Material Adverse Effect; and
(iii) the The sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by each of the Issuers and the Guarantors and such agreement shall be in full force and effect.
(i) The Company shall have delivered to the Initial Purchasers a true, correct and complete copy of the Credit Agreement; the Company, the Guarantor, the other Subsidiaries party thereto and the other parties thereto shall have executed and delivered the Credit Agreement, and the Credit Agreement shall be in full force and effect, subject only to the Closing hereunder and the closing of the CVC Sale.
(j) The Company shall have delivered to the Initial Purchasers a true, correct and complete copy of the documents governing the CVC Sale; such documents shall be in full force and effect and the CVC sale shall have occurred but for the release of the CVC Notes in the systems of The Depository Trust Company, which shall occur concurrently with the Closing hereunder (for the avoidance of doubt, the concurrent issuance of the CVC Notes is a condition to the Initial Purchasers' obligations hereunder).
(k) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(l) The Securities shall be designated Portal-eligible securities in accordance with the rules and regulations of the NASD. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such reasonable quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date or any Option Closing Date:
(a) On the Closing Date and on any Option Closing Date, the Initial Purchasers shall have received the opinion, dated as of the such Closing Date or Option Closing Date and addressed to the Initial Purchasers, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the IssuersCompany, substantially in the form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in of Annex C B hereto.
(b) On the Closing Date or any Option Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the such Closing Date or Option Closing Date, as the case may be, and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants 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 or pro forma financial information in the Pricing Disclosure Package. On the Closing Date and any Option Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum.
(d) The representations and warranties of the Issuers and the Guarantors 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 and any Option Closing Date as if made on and as of the such Closing Date or Option Closing Date; the statements of the Issuers’ Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the such Closing Date or Option Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date or Option Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date or any Option Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 certificatesa certificate of the Company, dated the Closing Date and any Option Closing Date, as the case may be, signed on behalf of the Company by its Chairman of the Board, President or any Senior Vice President and the Chief Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the such Closing Date or Option Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the such Closing Date or Option Closing Date;
(ii) at the such Closing Date or Option Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On The shares of Common Stock issuable upon conversion of the Closing Date, the Initial Purchasers Notes shall have received been duly listed for quotation on the Registration Rights Agreement executed New York Stock Exchange.
(i) The Company shall have caused each executive officer and director of the Company to execute and deliver to the Representatives, on or prior to the date of this Agreement, a letter or letters, substantially in the form attached hereto as Annex C (the “Lock-up Agreement”).
(j) The Company shall have entered into a new letter of credit facility to be provided by the Issuers an affiliate of Deutsche Bank Securities Inc., and the Guarantors and such agreement Company’s existing corporate revolving credit facility with Bank of America, N.A. shall be in full force and effecthave been terminated. On or before the Closing Date and any Option Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Sunedison, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall Securities shall, in its sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.Dechert LLP, counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser. In rendering such opinion, Dechert LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to the matters described in Annex C heretopass upon such matters.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPllp, counsel for the Initial PurchasersPurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP llp shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers Purchaser shall have received from the Independent Accountants a customary comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers Purchaser with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers Purchaser shall have received from the Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) 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 statements of the IssuersCompany’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 expected to have a Material Adverse Effect.
(g) The Initial Purchasers Purchaser shall have received certificatesa 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 Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and each warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Issuers Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchaser) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package 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 knownknown to the Company, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Issuers Company and the Guarantors and such agreement shall be in full force and effecteffect and in form and substance reasonably satisfactory to the Initial Purchaser. On the Closing Date, the Indenture shall continue to be in full force and effect and the Initial Purchaser shall have received an executed copy of the Authentication Order (as defined in the Indenture) required by Section 2.02 of the Indenture with respect to the issuance of the New Notes. On or before the Closing Date, the Initial Purchasers Purchaser and counsel for the Initial Purchasers Purchaser shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company, the Guarantors and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser. The Issuers Company and the Guarantors shall furnish to the Initial Purchasers Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall shall, in its sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received (i) an opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇ & ▇▇▇▇, special counsel for the Company, in form and substance satisfactory to the Initial Purchaser, and (ii) an opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇ P.C., special counsel for Globe Manufacturing, in form and substance satisfactory to the Initial Purchaser.
(b) On the Closing Date, the Initial Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the IssuersCompany, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser. In addition, as the Initial Purchaser shall have received a letter or letters permitting it to rely on any opinions rendered by counsel to MergerCo, the matters described Company and Globe Manufacturing in Annex C heretoconnection with the Transactions.
(bc) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Winston & ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersPurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(cd) On the date hereof, the The Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final MemorandumPurchaser.
(de) The representations and warranties of the Issuers and the Guarantors Company contained in this Agreement shall be true and correct on and as of the Time of Execution 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’ Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, development that, individually or in the aggregate, has or would reasonably be reasonably likely expected to have a Material Adverse Effect.
(ef) The sale of the Notes Units hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(fg) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none the conduct of the Issuers nor any business and operations of the Material Company or the Subsidiaries shall not have sustained any loss or interference been interfered with respect to its business or properties from by strike, fire, flood, hurricane, accident or other calamity, calamity (whether or not covered insured) or by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal court or governmental proceedingaction, order or decree, which and, except as otherwise stated therein, the properties of the Company or any Subsidiary shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which, individually or in the aggregate, has or would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(gh) The Initial Purchasers Purchaser shall have received certificatesa certificate of the Company, dated the Closing Date, signed by its Chairman of the Chief Executive Officer Board, President or any Vice President and the Chief Financial Officer of each of the Issuers(in their respective capacities as such), to the effect that:
(i) the The representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct on and as of the Time of Execution and on date hereof and as of the Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at 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 events have occurred, and no information has become known, known nor does any condition exist that, individually or in the aggregate, has or would reasonably be reasonably likely expected to have a Material Adverse Effect; and;
(iii) the The sale of the Notes Units hereunder has shall not have been enjoined (temporarily or permanently).; and
(hiv) On The Related Transactions have been consummated. As used herein, "Related Transactions" means (i) the Closing DateRecapitalization of the Company (as defined in the Final Memorandum) pursuant to the Merger Agreement (as defined below), (ii) the Merger (as defined in the Final Memorandum), (iii) the CHS Loan, (iv) the repayment of the CHS Loan by the Company with the net proceeds of the offering of the Units, (v) the Asset Drop Down (as defined in the Final Memorandum), (vi) the consummation of the Senior Credit Facility and the initial borrowing by Globe Manufacturing of approximately $120 million thereunder, (vii) the repayment of all outstanding obligations under the Old Credit Facility (as defined in the Final Memorandum) and the release of all liens on property of the Company granted in connection therewith and (viii) the other transactions contemplated by the Merger Agreement. As used herein, the Initial Purchasers shall have received Merger Agreement means the Registration Rights Agreement executed and Plan of Merger dated June 23, 1998, by and between the Issuers Company and Globe Acquisition Company, a newly formed affiliate of Code ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ III, L.P., as amended through the Guarantors and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably requestdate hereof.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall Securities shall, in its sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinionopinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇ (i) Jenner & Block LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, and substantially as set forth in Annex B hereto and (ii) Winston & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser, and substantially as to the matters described set forth in Annex C hereto.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance reasonably satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersPurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers Purchaser with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects; the statements of the IssuersCompany’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct correct, in all material respects, on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 expected to have a Material Adverse Effect.
(g) The Initial Purchasers Purchaser shall have received certificatesa certificate from the Company, dated the Closing Date, signed on behalf of the Company by the its (i) Chief Executive Officer Officer, President or any Senior Vice President or executive officer and (ii) Chief Financial Officer of each of the IssuersOfficer, Controller, Treasurer or principal financial or accounting officer to the effect thatthat to such officers’ knowledge after due inquiry:
(i) the representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects, and each of the Issuers Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(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 knownknown to the Company or any Guarantor, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect; and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Issuers Company and the Guarantors Guarantors, and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchaser shall have received a board resolution and an officer’s certificate in compliance with the requirements set forth in Section 2.15 of the Indenture.
(j) The Notes shall be eligible for clearance and settlement through The Depository Trust Company. On or before the Closing Date, the Initial Purchasers Purchaser and counsel for the Initial Purchasers Purchaser shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser. The Issuers Company and the Guarantors shall furnish to the Initial Purchasers Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Notes Bonds shall be subject to the satisfaction or waiver, in accuracy on the sole discretion date hereof and on the Closing Date of the Representative, representations and warranties made herein on the part of the following conditions Company and of any certificates furnished by the Company on or prior the Closing Date and to the Closing Datefollowing conditions:
(a) On At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have received the opinionfrom ▇▇▇▇ ▇. ▇▇▇▇, dated as Esq., Senior Counsel-Corporate and Securities of the Closing Date Entergy Services, Inc., and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.& Priest LLP opinions, counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On dated the Closing Date, substantially in the Initial Purchasers shall have received the opinionforms set forth in Exhibits A and B hereto, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, respectively (it being understood that ▇▇. ▇▇▇▇ may rely on an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel L.L.P. as to matters in his opinion relating to Texas law provided that the Initial Purchasers are addressees to, or are otherwise entitled to rely on, such opinion), (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Initial Purchasers, with respect and (ii) if the Offering Memorandum shall be supplemented after being furnished to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering for use in offering the Bonds, with changes therein to reflect such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matterssupplementation.
(c) On At the date hereofClosing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel Counsel for the Initial Purchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the Closing Date.
(d) At the Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP, the Company's independent certified public accountants (the "Accountants"), a letter dated the Closing Date and addressed to the Initial Purchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and any 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 information statements, if any, incorporated by reference in the Pricing Disclosure Package. Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2002 to a specified date not more than five days prior to the date of such letter, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; and (C) at a specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholders' equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement.
(e) At the Closing Date, the Initial Purchasers shall have received a certificate signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the Company, to the effect that (i) the representations and warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Purchase Agreement to be performed or complied with by the Company at or prior to the Closing Date and (iii) since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in each case other than as referred to in, or contemplated by, the Offering Memorandum, as it may then be amended or supplemented.
(f) At the Closing Date, the Initial Purchasers shall have received duly executed counterparts of the Supplemental Indenture and the Registration Rights Agreement.
(g) Between the date hereof and the Closing Date, no default (or an event which, with the giving of notice or the passage of time or both, would constitute a default) under the Mortgage (as defined therein) shall have occurred.
(h) On or prior to the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated Company evidence reasonably satisfactory to the Initial Purchasers that the Bonds have received ratings of Baa3 or better from ▇▇▇▇▇'▇ Investors Service, Inc. and BBB- or better from Standard & Poor's Ratings Services.
(i) Between the date hereof and the Closing Date, neither ▇▇▇▇▇'▇ Investors Service, Inc. nor Standard & Poor's Ratings Services shall have lowered its rating of any of the Company's outstanding first mortgage bonds in any respect.
(j) Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, which, in the reasonable opinion of ABN AMRO Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as representatives of the Initial Purchasers, materially impairs the investment quality of the Bonds.
(k) All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance satisfactory to counsel Counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(dl) The representations and warranties of the Issuers and the Guarantors contained in this Agreement Company shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Issuers’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, furnish the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and with additional conformed copies of such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs documents as may be reasonably requested. If any of the Issuers conditions specified in this Section 6 shall not have been fulfilled, this Purchase Agreement may be terminated by ABN AMRO Incorporated and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for on behalf of the Initial Purchasers. The Issuers shall furnish , upon notice thereof to the Initial Purchasers Company. Any such conformed copies termination shall be without liability of such documentsany party to any other party, opinions, certificates, letters, schedules except as otherwise provided in paragraph (d) of Section 5 and instruments in such quantities as the Initial Purchasers shall reasonably requestSection 9.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall be are subject to the satisfaction or waiveraccuracy, in the sole discretion when made and on and as of the Representative, of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(i) The Initial Purchasers shall have received the opinion, dated as of the Closing Date opinions in form and addressed substance reasonably satisfactory to the Initial Purchasers, dated the Closing Date, of ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(ii) The Initial Purchasers shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.LLP, counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersDate, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, .
(iii) The Initial Purchasers shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On independent registered public accountants for the Company, on each of the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for to the Initial Purchasers, which shall refer to the comfort letter letters dated the date hereof and reaffirm the Closing Date confirming that is an independent registered public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or update as of a more recent date, the information stated incorporated by reference in the comfort letter dated Disclosure Package and the date hereof and similarly address the audited and any unaudited financial information in the Final Offering Memorandum.
(div) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Issuers and the Guarantors 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 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 performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such 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.
(evi) The None of the issuance and sale of the Notes hereunder Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall not be enjoined (temporarily or permanently) on and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Closing DateCompany or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(fvii) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development has occurredrelating to or involving the Company or any subsidiary, and no information has become known, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, individually or in the aggregateopinion of the Company and its counsel or the Initial Purchasers and its counsel, has requires the making of any addition to or would be reasonably likely change in the Disclosure Package and the Offering Memorandum in order to have state a Material Adverse Effect; andmaterial fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(iiiviii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Notes hereunder has Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(hix) On Each of the Closing Date, Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have received been executed and delivered by all the Registration Rights Agreement executed by respective parties thereto (other than the Issuers Initial Purchasers) and the Guarantors and such agreement shall be in full force and effect. On , and there shall have been no material amendments, alterations, modifications or before waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At the Closing Date, the Initial Purchasers Company and counsel for the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received such further documentscounterparts, opinionsconformed as executed, certificates, letters thereof and schedules or instruments relating to the business, corporate, legal Notes shall have been duly executed and financial affairs delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Issuers and the Guarantors as they shall have heretofore reasonably requested from the IssuersNotes will be duly listed, subject to notice of issuance, for quotation on Nasdaq. All such documents, opinions, certificates, letters, schedules schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for to the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Notes shall be Shares are subject to the satisfaction absence from any certificates, opinions, written statements or waiver, in letters furnished to the sole discretion Initial Purchaser pursuant to this Section 8 of the Representative, of any misstatement or omission and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(ai) On the Closing Date, the The Initial Purchasers Purchaser shall have received the opinion, dated as of the Closing Date an opinion and addressed a negative assurance letter in form and substance reasonably satisfactory to the Initial Purchasers, of Purchaser from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C heretoCompany.
(bii) On the Closing Date, the The Initial Purchasers Purchaser shall have received the opinion, in form an opinion and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, a negative assurance letter of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for to the Initial PurchasersPurchaser, dated the Closing Date, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(ciii) On the date hereof, the The Initial Purchasers Purchaser shall have received from Ernst &Young LLP, independent registered public accounting firm for the Independent Accountants a comfort letter dated Company, on each of the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer Purchaser and counsel to the comfort letter Initial Purchaser, letters dated the date hereof and reaffirm the Closing Date confirming that is an independent public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or update as of a more recent date, the information stated incorporated by reference in the comfort letter dated Disclosure Package and the date hereof and similarly address the audited and any unaudited financial information in the Final MemorandumOffering Circular.
(div) The Initial Purchaser shall have received from each of the officers and directors listed on Schedule IV hereto an executed Lock-Up Agreement in substantially the form of Exhibit B hereto.
(v) The representations and warranties of the Issuers and the Guarantors 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 in all material respects 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 Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Shares pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by the Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), subsequent to there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the date business, condition (financial or other), properties or results of operations of the most recent financial statements Company or any subsidiary, not disclosed in such Pricing the Disclosure Package and the Final MemorandumOffering Circular that is, there shall have been no in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Circular, or (ii) any event or developmentdevelopment relating to or involving the Company or any subsidiary, and no information shall have become known, or any of their respective officers or directors that makes any material statement made in the Offering Circular untrue or that, individually or in the aggregateopinion of the Company and its counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Circular in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, unless such addition or change has been made by the Company in an amendment or would be reasonably likely supplement to have a Material Adverse Effectthe Disclosure Package and the Offering Circular.
(eviii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct in all material respects as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Notes hereunder shall Shares pursuant to this Agreement, the Disclosure Package and the Offering Circular and the consummation of the transactions contemplated by the Offering Documents have not be been enjoined (temporarily or permanently) on and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Closing DateCompany relating to the issuance of the Shares or the Initial Purchaser’ activities in connection therewith or in connection with any other transactions contemplated by the Offering Documents.
(f) c. 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 Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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 there has 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
occurred (i) any material adverse change, or any development involving a prospective material adverse change, in or affecting the representations and warranties business, financial condition , properties, prospects or results of each operations of the Issuers and Company or any subsidiary, not contemplated by the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum Offering Circular, or (exclusive of ii) any amendment or supplement thereto after the date hereof), no event or development has occurredrelating to or involving the Company or any subsidiary, and no information has become known, that, individually or any of their respective officers or directors that makes any material statement made in the aggregateDisclosure Package and the Offering Circular untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Circular in order to state a material fact necessary in order to make the statements made therein, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale in light of the Notes hereunder has circumstances under which they are made, not been enjoined misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, there exists no Default or Event of Default (temporarily or permanentlyas defined in the Certificate of Designations).
(hix) On Each of the Closing Date, Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated by this Agreement shall be reasonably satisfactory in form and substance to the Initial Purchasers Purchaser and shall have received been executed and delivered by all the Registration Rights Agreement executed by respective parties thereto (other than the Issuers Initial Purchaser) and the Guarantors and such agreement shall be in full force and effect. On , and there shall have been no material amendments, alterations, modifications or before waivers of any provision thereof since the Closing Date, date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Shares and the transactions contemplated by this Agreement and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchasers Purchaser and counsel for to the Initial Purchasers Purchaser.
(xi) The Company shall have received furnished or caused to be furnished to the Initial Purchaser such further documents, opinions, certificates, letters certificates and schedules or instruments relating to documents as the business, corporate, legal and financial affairs of the Issuers and the Guarantors as they Initial Purchaser shall have heretofore reasonably requested from the Issuersrequested. All such documents, opinions, certificates, letters, schedules schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for to the Initial PurchasersPurchaser. The Issuers Company shall furnish to the Initial Purchasers Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules schedules, documents and instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date or any Option Closing Date:
(a) On the Closing Date and on any Option Closing Date, the Initial Purchasers shall have received the opinion, dated as of the such Closing Date or Option Closing Date and addressed to the Initial Purchasers, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, counsel for the IssuersCompany, substantially in the form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in of Annex C B hereto.
(b) On the Closing Date or any Option Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the such Closing Date or Option Closing Date, as the case may be, and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants 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 or pro forma financial information in the Pricing Disclosure Package. On the Closing Date and any Option Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum.
(d) The representations and warranties of the Issuers and the Guarantors 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 and any Option Closing Date as if made on and as of the such Closing Date or Option Closing Date; the statements of the Issuers’ Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the such Closing Date or Option Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date or Option Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date or any Option Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 certificatesa certificate of the Company, dated the Closing Date and any Option Closing Date, as the case may be, signed on behalf of the Company by its Chairman of the Board, President or any Senior Vice President and the Chief Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the such Closing Date or Option Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the such Closing Date or Option Closing Date;
(ii) at the such Closing Date or Option Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On The shares of Common Stock issuable upon conversion of the Closing Date, the Initial Purchasers Notes shall have received been duly listed for quotation on the Registration Rights Agreement executed by New York Stock Exchange.
(i) The Company shall have caused each executive officer and director of the Issuers Company to execute and deliver to the Guarantors and such agreement shall be Representatives, on or prior to the date of this Agreement, a letter or letters, substantially in full force and effectthe form attached hereto as Annex C (the “Lock-up Agreement”). On or before the Closing Date and any Option Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Sunedison, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Firm Notes shall and the Optional Notes, as the case may be, shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date (references to the Closing Date in this Section 7 shall apply to the Subsequent Closing Date:, if applicable):
(a) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the IssuersCompany, covering the opinion points set forth in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C heretoSchedule 3.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants each of Ernst & Young LLP and ▇▇▇▇▇▇▇▇ 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 or pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants each of Ernst & Young LLP and ▇▇▇▇▇▇▇▇ LLP, a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum.
(d) The Initial Purchasers shall have received, on the Closing Date, a certificate dated the Closing Date in form of Exhibit A hereto, from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial Officer of the Company, with respect to certain financial information contained in the Pricing Disclosure Package and the Final Memorandum.
(e) The representations and warranties of the Issuers and the Guarantors 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 statements of the Issuers’ Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such 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.
(ef) The sale of the Notes or the Conversion Shares hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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 certificatesa certificate of the Company, dated the Closing Date, signed on behalf of the Company by the its Chief Executive Officer or and the Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes and Conversion Shares hereunder has not been enjoined (temporarily or permanently).
(h) On Prior to the Closing Date, the Initial Purchasers Company shall have received furnished to the Registration Rights Agreement executed Representatives, a letter substantially in the form of Annex B hereto from each officer and director of the Company addressed to the Representatives.
(i) An application for the listing of the Maximum Number of Conversion Shares shall have been approved by the Issuers and the Guarantors and such agreement shall be in full force and effectThe NASDAQ Global Select Market, subject to official notice of issuance. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (LGI Homes, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Notes Bonds shall be subject to the satisfaction or waiver, in accuracy on the sole discretion date hereof and on the Closing Date of the Representative, representations and warranties made herein on the part of the following conditions Company and of any certificates furnished by the Company on or prior the Closing Date and to the Closing Datefollowing conditions:
(a) On At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have received the opinionfrom M▇▇▇ ▇. ▇▇▇▇, Esq., Senior Counsel-Corporate and Securities of Entergy Services, Inc., and T▇▇▇▇▇ ▇▇▇▇ & Priest LLP opinions, dated as of the Closing Date Date, substantially in the forms set forth in Exhibits A and addressed to the Initial PurchasersB hereto, respectively (it being understood that M▇. ▇▇▇▇ may rely on an opinion of O▇▇▇▇▇, B▇▇▇ & T▇▇▇▇▇▇ L.L.P., counsel for L.L.P. as to matters in his opinion relating to Texas law provided that the IssuersInitial Purchasers are addressees to, in form or are otherwise entitled to rely on, such opinion), (i) with such changes therein as may be agreed upon by the Company and substance satisfactory to counsel the Initial Purchasers with the approval of Counsel for the Initial Purchasers, as and (ii) if the Offering Memorandum shall be supplemented after being furnished to the matters described Initial Purchasers for use in Annex C heretooffering the Bonds, with changes therein to reflect such supplementation.
(bc) On At the Closing Date, the Initial Purchasers shall have received from Counsel for the Initial Purchasers an opinion, dated the Closing Date, substantially in the form and substance satisfactory set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the Closing Date.
(d) At the Closing Date, the Initial PurchasersPurchasers shall have received from Deloitte & Touche LLP, the Company,s independent certified public accountants (the "Accountants"), a letter dated as of the Closing Date and addressed to the Initial PurchasersPurchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and incorporated by reference in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of ▇▇▇▇▇▇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, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPInterim Financial Information, counsel on the latest unaudited financial statements, if any, incorporated by reference in the Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2002 to a specified date not more than five days prior to the date of such letter, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (C) at the date of the latest available balance sheet read by the Accountants, and at a subsequent specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholders, equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (D) for the period from the closing date of the most recent income statement incorporated by reference in the Offering Memorandum to the closing date of the latest available income statement read by the Accountants, there were any decreases, as compared to the corresponding period in the preceding year, in operating revenues, operating income or net income, except in all instances for decreases which the Offering Memorandum discloses have occurred or may occur or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinionresults obtained from the application of specified readings, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates inquiries and other documents appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and information as it may reasonably request found them to pass upon such mattersbe in agreement.
(ce) On At the date hereofClosing Date, the Initial Purchasers shall have received from a certificate signed by the Independent Accountants President, a comfort letter dated Vice President, the Treasurer or an Assistant Treasurer of the Company, to the effect that (i) the representations and warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Purchase Agreement to be performed or complied with by the Company at or prior to the Closing Date and (iii) since the most recent date hereofas of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in form and substance satisfactory each case other than as referred to counsel for in, or contemplated by, the Offering Memorandum, as it may then be amended or supplemented.
(f) At the Closing Date, the Initial Purchasers shall have received duly executed counterparts of the Supplemental Indenture and the Registration Rights Agreement.
(g) Between the date hereof and the Closing Date, no default (or an event which, with respect the giving of notice or the passage of time or both, would constitute a default) under the Mortgage (as defined therein) shall have occurred.
(h) On or prior to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated Company evidence reasonably satisfactory to the Initial Purchasers that the Bonds have received ratings of Baa3 or better from M▇▇▇▇,s Investors Service, Inc. and BBB- or better from Standard & Poor,s Ratings Services.
(i) Between the date hereof and the Closing Date, neither M▇▇▇▇,s Investors Service, Inc. nor Standard & Poor,s Ratings Services shall have lowered its rating of any of the Company,s outstanding first mortgage bonds in any respect.
(j) Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, which, in the reasonable opinion of Banc One Capital Markets, Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated, as representatives of the Initial Purchasers, materially impairs the investment quality of the Bonds.
(k) All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance satisfactory to counsel Counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(dl) The representations and warranties of the Issuers and the Guarantors contained in this Agreement Company shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Issuers’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, furnish the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and with additional conformed copies of such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs documents as may be reasonably requested. If any of the Issuers conditions specified in this Section 6 shall not have been fulfilled, this Purchase Agreement may be terminated by Banc One Capital Markets, Inc. and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documentsM▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for on behalf of the Initial Purchasers. The Issuers shall furnish , upon notice thereof to the Initial Purchasers Company. Any such conformed copies termination shall be without liability of such documentsany party to any other party, opinions, certificates, letters, schedules except as otherwise provided in paragraph (d) of Section 5 and instruments in such quantities as the Initial Purchasers shall reasonably requestSection 9.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, "Closing Date" shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall be are subject to the satisfaction absence from any certificates, opinions, written statements or waiver, in letters furnished to the sole discretion Initial Purchasers pursuant to this Section 7 of the Representative, of any misstatement or omissions and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Issuers, an opinion in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date Date, of Kirkpatrick & Lockhart LLP, counsel to the Company, cove▇▇▇▇ ▇▇▇▇ ▇att▇▇▇ ▇▇ ▇re set forth in Exhibit B hereto.
(ii) The Initial Purchasers shall have received an opinion and addressed a statement, each dated the Closing Date, of Simpson Thacher & Bartlett LLP, counsel to the Initial Purchasers, of P▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇respect to t▇▇ LLP, counsel for the Initial Purchasers, with respect to sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP .
(iii) The Initial Purchasers shall have received from Deloitte & Touche LLP, independent auditors for the Company, a "comfort" letter, dated the date hereof and may rely upon such certificates the Closing Date, in form and other documents and information as it may substance reasonably request satisfactory to pass upon such mattersthe Initial Purchasers.
(civ) On Prior to the date hereof, the Initial Purchasers shall have received from each of the Independent Accountants a comfort letter dated the date hereof, officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information substantially in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final MemorandumExhibit C hereto.
(dv) The All of the representations and warranties of the Issuers and the Guarantors contained Company set forth 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 statements of the Issuers’ officers made pursuant to any certificate delivered Company shall have, in accordance all material respects, complied with the provisions hereof shall be true all agreements, and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have satisfied or performed all covenants conditions and agreements and satisfied all conditions obligations on their its part to be satisfied or performed or satisfied hereunder hereunder, at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements of the Company in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the date business, condition (financial or other), results of operations, stockholders' equity or properties of the most recent financial statements Company or any of the Subsidiaries, not disclosed in such Pricing Disclosure Package the Offering Memorandum that is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the Final Memorandum, there shall have been no offering of the Securities on the terms and in the manner contemplated by the Offering Memorandum or (ii) any event or developmentdevelopment relating to or involving the Company or any of the Subsidiaries, and no information shall have become knownor any of their respective officers or directors, that makes any material statement made in the Offering Memorandum untrue or that, individually or in the aggregateopinion of the Company and its counsel or the Initial Purchasers and their counsel, has requires the making of any addition to or would be reasonably likely change in the Offering Memorandum in order to have state a Material Adverse Effectmaterial fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(eviii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date, all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Notes hereunder shall pursuant to this Agreement or the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not be been enjoined (temporarily or permanently) on and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers' knowledge, threatened against the Closing DateCompany relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
(f) c. 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 Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none there has not occurred (i) any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, condition (financial or other), results of operations, stockholders' equity or properties of the Issuers nor Company or any of the Material Subsidiaries, not contemplated by the Offering Memorandum or (ii) any event or development relating to or involving the Company or any of the Subsidiaries shall have sustained or any loss of their respective officers or interference with respect to its business or properties from firedirectors, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from that makes 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 statement made in the aggregateOffering Memorandum materially untrue or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, has in light of the circumstances under which they are made, not misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Documents, there exists no Default or would be reasonably likely to have a Material Adverse EffectEvent of Default (each such term as defined in the Indenture).
(gix) The Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have received certificates, dated been executed and delivered by all the Closing Date, signed by respective parties thereto (other than the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
(iInitial Purchasers) the representations and warranties of each of the Issuers shall be in full force and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Dateeffect, and each there shall have been no material amendments, alterations, modifications or waivers of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or any provision thereof 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; andthis Agreement.
(iiix) All proceedings taken in connection with the sale issuance of the Notes hereunder has not been enjoined (temporarily or permanently)and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers.
(hxi) The Notes shall have been approved for trading on The PORTAL Market.
(xii) 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.
(xiii) On or before the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors Company and such agreement shall be in full force and effect. On .
(xiv) The Company shall have provided an irrevocable notice of termination to General Electric Capital Corporation of the Loan and Security Agreement, dated December 27, 1996, as amended, among Par Pharmaceutical, Inc., General Electric Capital Corporation and the other parties named therein shall have been terminated.
(xv) The Company shall have furnished or before caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested, all in form and substance reasonably satisfactory to them.
(xvi) At the Closing Date, the Initial Purchasers Company and counsel for the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received such further documentscounterparts, opinionsconformed as executed, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers thereof and the Guarantors as they Notes shall have heretofore reasonably requested from been duly executed and delivered by the IssuersCompany and duly authenticated by the Trustee. All such documents, opinions, certificates, letters, schedules schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for to the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the The Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, opinions in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial PurchasersDate, of (i) Weil, Gotshal & Mang▇▇▇▇ ▇▇▇, counsel for the Issuers, substantially in the form of Exhibit B-1 hereto and (ii) Leib▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPssociates, regulatory counsel for the Initial PurchasersIssuers, with respect to certain legal matters relating to this Agreement and such other related matters as substantially in the Initial Purchasers may reasonably requireform of Exhibit B-2 hereto. In rendering such opinionopinions, Weil, Gotshal & Mang▇▇ ▇▇▇ and Lieb▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP ssociates shall have received and may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such matters.
(c) On the date hereof, the The Initial Purchasers shall have received from the Independent Accountants a comfort letter dated each of Coopers & Lybr▇▇▇ ▇.▇.P., Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ and KPMG Peat Marwick, dated, respectively, on or about the date hereofhereof and as of the Closing Date, customary comfort letters addressed to the Initial Purchasers, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and in all material respects as of the Time of Execution and on and as of the Closing Date as if made on date hereof and as of the Closing Date; the statements of Company and 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 Guarantors shall have performed complied in all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such 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 material adverse change in the aggregatebusiness, has condition (financial or would be reasonably likely to have other), results of operations or prospects of the Company and the Guarantors, taken as a Material Adverse Effectwhole, except as set forth in, or contemplated by, the Memorandum.
(e) The issuance and sale of the Notes Securities by the Company and the Guarantors hereunder shall not be enjoined (temporarily or permanently) on the Closing DateDate and no restraining order or other injunctive order shall have been issued or any action, suit or proceeding shall have been commenced with respect to this Agreement or any other transactions hereby, before any court or governmental authority (including, without limitation, the FCC).
(fg) Subsequent to the date as of which information is given in the Memorandum, the conduct of the most recent financial statements in the Pricing Disclosure Package business and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none operations of the Issuers nor Company or any of the Material Subsidiaries shall have sustained any loss or interference its subsidiaries has not been interfered with respect to its business or properties from by strike, fire, flood, hurricane, accident or other calamity, calamity (whether or not covered insured) or by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal court or governmental proceedingaction, order or decree, which 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, individually loss or in the aggregate, has or damage which would be reasonably likely to not have a Material Adverse Effect.
(gh) The Initial Purchasers shall have received certificatesa certificate of the Company, dated the Closing Date, signed on behalf of the Company by the its President and Chief Executive Officer or and Senior Vice President and Chief Financial Officer of each of the IssuersCompany, to the effect that:
(i) the The representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct on and in all material respects as of the Time of Execution and if made on and as of the Closing DateDate (other than to the extent any such representation or warranty is expressly made to a certain date), and the Company and each of the Issuers and the Guarantors have Guarantor has performed in all material respects all covenants and agreements and satisfied satisfied, in all material respects, all conditions on their part to be performed or satisfied hereunder hereunder, to the extent a party thereto, at or prior to the Closing Date;
(ii) at At the Closing Date, since the date hereof or since the date of the most recent financial statements statement in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof)Memorandum, no event or development has events have occurred, and no nor has any information has become known, known that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and;
(iii) the The issuance and sale of the Notes Securities by the Company and the Guarantors hereunder has not been enjoined (temporarily or permanently); and
(iv) indebtedness of the Company or the Guarantors that individually or in the aggregate would have a Material Adverse Effect.
(hi) On the Closing Date, the Initial 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. effect on the Closing Date.
(j) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.Dechert LLP, counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial PurchasersRepresentative. In rendering such opinion, Dechert LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to the matters described in Annex C heretopass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPllp, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP llp shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) 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 statements of the IssuersCompany’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 expected to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received certificatesa 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 Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and each warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Issuers Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package 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 knownknown to the Company and the Guarantors, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Indenture and the Registration Rights Agreement executed by the Issuers Company and the Guarantors and such agreement agreements shall be in full force and effecteffect and in form and substance reasonably satisfactory to the Representative.
(i) On or before the Closing Date, the Company shall have delivered to the trustee under the Existing Notes Indenture an irrevocable notice of redemption in accordance with the provisions of the Existing Notes Indenture (a copy of which shall be delivered to the Initial Purchasers) in an amount equal to the difference between (i) $850,000,000 and (ii) the amount of the Existing Notes repurchased pursuant to the Tender Offer. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company, the Guarantors and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company and the Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes Securities shall be subject to the satisfaction or waiveraccuracy of the representations and warranties of the Company and the Guarantors in Section 3 hereof, in the sole discretion each case on and as of the Representative, Applicable Time and on and as of the following conditions applicable Closing Date, as if made on or prior and as of the Applicable Time and on and as of the applicable Closing Date, to the Closing Dateaccuracy of the statements of the Company’s and the Guarantors’ officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their respective covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, The Company shall furnish to the Initial Purchasers shall have received the opinion, dated as of at the Closing Date and addressed to the Initial Purchasers, Option Closing Date the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P.LLP, corporate counsel for the IssuersCompany, in form the Guarantors and substance satisfactory to counsel for the Initial PurchasersSubsidiaries, as addressed to the matters described Representative and dated the Closing Date and the Option Closing Date, substantially in Annex C the form of Exhibit A hereto.
(b) The Company shall furnish to the Initial Purchasers at the Closing Date and the Option Closing Date the opinion of ▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Guarantors, addressed to the Representative and dated the Closing Date and the Option Closing Date, substantially in the form of Exhibit B hereto.
(c) On the date of this Agreement and at the Initial Closing DateDate and the Option Closing Date (if applicable), the Initial Purchasers shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP letters dated the opinionrespective dates of delivery thereof and addressed to the Representative, in form and substance satisfactory to the Initial PurchasersRepresentative, dated as containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Financial Statements and certain financial information of the Company, the Guarantors and the Subsidiaries included in the Disclosure Package and the Final Circular, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Initial Closing Date and addressed the Option Closing Date (if applicable) shall use a “cut-off” date no more than three business days prior to such Initial Closing Date and the Option Closing Date, as the case may be.
(d) The Initial Purchasers shall have received at the Initial Purchasers, Closing Date and the Option Closing Date the favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ and a negative assurance letter from Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect addressed to certain legal matters relating the Representative and dated the Initial Closing Date and the Option Closing Date, in form and substance satisfactory to this Agreement and such other related matters as the Initial Purchasers. In addition, the Initial Purchasers may reasonably require. In rendering such opinionshall have received at the Initial Closing Date and the Option Closing Date, ▇▇▇▇▇▇, ▇▇▇▇ (i) the favorable opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereofLLP, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, 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 as to certain federal income tax matters, substantially in the form of Exhibit C hereto, and (ii) the favorable opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, to the comfort letter effect that the Company and the Guarantors are not, and the transactions contemplated by this Agreement will not cause the Company or the Guarantors to become, an “investment company” as such term is defined under the Investment Company Act, substantially in the form of Exhibit D hereto, each addressed to the Representative and dated the date hereof Initial Closing Date and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final MemorandumOption Closing Date.
(de) 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 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 performed all covenants and agreements and satisfied all conditions on their part to be performed No amendment or satisfied hereunder at or prior supplement to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there Circular shall have been no event or development, and no information filed to which the Representative shall have become known, that, individually or objected in writing prior to the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Datefiling thereof.
(f) Subsequent to Between the date time of the most recent financial statements in the Pricing Disclosure Package execution of this Agreement and the Final Memorandum (exclusive of Initial Closing Date or the Option Closing Date, there shall not have been any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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 EffectChange.
(g) At the Initial Closing Date, the Underlying Shares shall have been accepted for listing on the NYSE, subject to notice of issuance, and have been reserved for issuance by NRF.
(h) The Initial Purchasers shall have received certificatesreceived, dated at the Initial Closing Date and the Option Closing Date, signed by the Chief Executive Officer or Chief Financial Officer a certificate of each two of the IssuersNRF’s executive officers, to the effect that:
(i) the representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct correct, as if made on and as of the Time of Execution Initial Closing Date and on and as of the Option Closing Date, as applicable, and each of the Issuers Company and the Guarantors have performed complied with all covenants and agreements of their respective obligations hereunder and satisfied all of the conditions on their part to be performed or satisfied hereunder at or prior to the at the Initial Closing Date and the Option Closing Date;, as applicable; and
(ii) at subsequent to the Closing Date, since the date hereof or since the date respective dates as of the most recent financial statements which information is given in the Pricing Disclosure Package and the Final Memorandum Circular, there has not been (exclusive of A) any amendment Material Adverse Change, (B) any transaction that is material to the Company or supplement thereto after the date hereof)Guarantors and their respective subsidiaries taken as a whole, no event (C) any obligation, direct or development has occurredcontingent, that is material to the Company and no information has become knownits subsidiaries, thattaken as a whole, individually incurred by the Company, the Guarantors or the Subsidiaries, (D) any change in the aggregatecapital stock or outstanding indebtedness of the Company, the Guarantors or any Subsidiary that is material to the Company, the Guarantors and any of their respective subsidiaries, taken as a whole, or (E) any loss or damage (whether or not insured) to the Properties which has been sustained or will have been sustained which would reasonably be reasonably likely expected to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(hi) On or prior to the Initial Closing Date, the Initial Purchasers shall have received an agreement substantially in the Registration Rights Agreement executed form of Exhibit E hereto signed by the Issuers persons listed in Schedule III hereto.
(j) All corporate and partnership proceedings taken in connection with the issuance of the Securities and the Guarantors transactions contemplated by this Agreement, the Transaction Documents and such agreement all legal matters relating thereto shall be in full force and effect. On or before the Closing Date, reasonably satisfactory to counsel to the Initial Purchasers and counsel for to the Initial Purchasers shall have received copies of such further documents, opinions, certificates, letters papers and schedules or instruments relating documents as they may reasonably request in connection therewith to the business, corporate, enable them to pass upon such legal and financial affairs of the Issuers matters.
(k) The Company and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish furnished to the Initial Purchasers such conformed copies other documents and certificates as to the accuracy and completeness of such documentsany statement in the Disclosure Package and the Final Circular, opinionsthe representations, certificateswarranties and statements of the Company and the Guarantors contained herein, lettersand the performance by the Company and the Guarantors of their covenants contained herein, schedules and instruments in such quantities the fulfillment of any conditions contained herein, as of the Initial Closing Date or the Option Time, as the Initial Purchasers shall reasonably requesthave requested prior to the date hereof.
Appears in 1 contract
Sources: Purchase Agreement (Northstar Realty Finance Corp.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) 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 Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & US LLP, counsel for the Company, substantially in the form attached hereto as Annex C.
(b) On the Closing Date, the Initial Purchasers shall have received a negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ L.L.P.US LLP, counsel for the IssuersCompany, substantially in the form and substance satisfactory to counsel for the Initial Purchasers, attached hereto as to the matters described in Annex C hereto.D.
(bc) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(cd) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(de) On the date hereof, the Initial Purchasers shall have received a letter dated the date hereof, in form and substance reasonably satisfactory to the Initial Purchasers, of NSAI.
(f) The representations and warranties of the Issuers and the Guarantors Eclipse Entities 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 statements of the Issuers’ Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Eclipse Entities shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(eg) The issuance and sale of the Notes hereunder by the Company or the issuance of the Guarantees shall not be enjoined (temporarily or permanently) on the Closing Date.
(fh) 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), none of the Issuers nor any of the Material Subsidiaries Eclipse Entities 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 expected to have a Material Adverse Effect.
(gi) The Initial Purchasers shall have received certificatesa certificate from the Company, signed on behalf of the Company by its Chief Executive Officer and Chief Financial Officer, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that, to such officers’ knowledge after due inquiry:
(i) the representations and warranties of each of the Issuers and the Guarantors Eclipse Entities contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have Eclipse Entities has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(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 knownknown to the Eclipse Entities, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect; and
(iii) the issuance and sale of the Notes hereunder by the Company or the issuance of the Guarantees by the Guarantors has not been enjoined (temporarily or permanently).
(hj) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by each of the Issuers and the Guarantors Eclipse Entities and such agreement shall be in full force and effect. .
(k) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors Eclipse Entities as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date or any Option Closing Date:
(a) On the Closing Date and on any Option Closing Date, the Initial Purchasers shall have received the opinion, dated as of the such Closing Date or Option Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC, counsel for the IssuersCompany, in the form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in of Annex C B hereto.
(b) On the Closing Date or any Option Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the such Closing Date or Option Closing Date, as the case may be, and addressed to the Initial Purchasers, of L▇▇▇▇▇▇, ▇▇▇▇ & ▇▇W▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, L▇▇▇▇▇▇, ▇▇▇▇ & ▇▇W▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants EisnerAmper LLP a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date and any Option Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Offering Memorandum.
(d) The representations and warranties of the Issuers and the Guarantors 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 and any Option Closing Date as if made on and as of the such Closing Date or Option Closing Date; the statements of the Issuers’ Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the such Closing Date or Option Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date or Option Closing Date; and, except as described in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Offering Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date or any Option Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 certificatesa certificate of the Company, dated the Closing Date and any Option Closing Date, as the case may be, signed on behalf of the Company by its Chairman of the Board, President or any Senior Vice President and the Chief Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the such Closing Date or Option Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the such Closing Date or Option Closing Date;
(ii) at the such Closing Date or Option Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On An application for the Closing Datelisting of the Common Stock that the Company is authorized to issue as of the date hereof shall have been submitted to the NYSE MKT.
(i) The Company shall have caused each executive officer, director and shareholder of the Company set forth on Schedule 3 hereto to execute and deliver to the Initial Purchasers Purchasers, on or prior to the date of this Agreement, a letter or letters, substantially in the form attached hereto as Annex C (the “Lock-up Agreement”).
(j) The Company shall have received amended its asset-based revolving senior secured credit facility with General Electric Capital Corporation, as agent for GE Capital Bank, in form and substance reasonably satisfactory to counsel for the Registration Rights Agreement executed by the Issuers and the Guarantors and such agreement shall be in full force and effectInitial Purchasers. On or before the Closing Date and any Option Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The --------------------------------------------------- obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in its sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) The Memorandum shall be in form and substance reasonably satisfactory to the Initial Purchasers. The Company 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 & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Company, in the form attached hereto as Exhibit A, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇ L.L.P., counsel for Esq., Senior Vice President, Legal and Strategic Affairs, of the IssuersCompany, in the form attached hereto as Exhibit B, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(bd) 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 for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(ce) On the date hereof, the The Initial Purchasers shall have received from the Independent Accountants PricewaterhouseCoopers LLP a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(df) The representations and warranties of the Issuers and the Guarantors Company contained in this Agreement shall be true and correct on and as of the Time of Execution 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’ Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed in all material respects all covenants and agreements and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such 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.
(eg) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(fh) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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.
(gi) The Initial Purchasers shall have received certificatesa 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 Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the The representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct in all material respects on and as of the Time of Execution date hereof and on and as of the Closing Date, and each of the Issuers and the Guarantors have Company has performed 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;
(ii) at 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 The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(hj) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors Company and such agreement shall be in full force and effecteffect at all times from and after the Closing Date.
(k) On the Closing Date, the Initial Purchasers shall have received the Escrow Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(l) On the Closing Date, the Company shall have irrevocably called for redemption of all of its 9 3/4% Senior Subordinated Debentures due 2007 and shall provide evidence thereof reasonably satisfactory to the Initial Purchasers. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore theretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.Dechert LLP, counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial PurchasersRepresentative. In rendering such opinion, Dechert LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to the matters described in Annex C heretopass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from each of the Independent Accountants a customary comfort letter letters dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited or pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum.
(d) 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 statements of the IssuersCompany’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 expected to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received certificatesa 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 Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and each warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Issuers Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package 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 knownknown to the Company, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect; and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Indenture and the Registration Rights Agreement executed by the Issuers Company and the Guarantors and such agreement agreements shall be in full force and effecteffect and in form and substance reasonably satisfactory to the Representative.
(i) On or prior to the Closing Date, the Credit Facility Amendments shall have been entered into on substantially the same terms and conditions described in the Pricing Disclosure Package providing for the issuance of up to $550.0 million in aggregate principal amount of Notes and, to the extent reasonably requested, the Initial Purchasers shall have received all documents and agreements entered into in connection therewith. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company, the Guarantors and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company and the Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall Securities shall, in its sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Maye▇, ▇▇own & Plat▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel nsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C heretoPurchaser.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, opinions dated as of the Closing Date and addressed to the Initial PurchasersPurchaser and the Trustee, of ▇▇▇▇▇▇local counsel for each of the Subsidiary Guarantors listed on Schedule 3 hereto, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersPurchaser.
(c) On the date hereofClosing Date, the Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter opinions, dated the date hereofClosing Date and addressed to the Initial Purchaser, of local counsel for the Company and the Subsidiaries, in each of the jurisdictions listed on Schedule 4 hereto substantially in the form of the local counsel opinions delivered pursuant to the provisions of the Senior Credit Facility, relating to the creation, enforceability and perfection of the security interests and Liens created by the Security Documents delivered in accordance therewith, with such changes thereto as shall be reasonably requested by counsel to the Initial Purchaser and, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Purchaser.
(e) The Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final MemorandumPurchaser.
(df) 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 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’ Company's and the Subsidiary Guarantors' officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such 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.
(eg) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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.
(gh) The Initial Purchasers Purchaser shall have received certificatesa certificate of the Company and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of the Company by the its Chief Executive Officer, Chief Financial Officer or Chief Financial Operating Officer and any Vice President and signed on behalf of each of the IssuersSubsidiary Guarantors by two officers of each of the Subsidiary Guarantors, to the effect that:
(i) the The representations and warranties of each of the Issuers Company and the Subsidiary Guarantors contained in this Agreement are true and correct on and as of the Time of Execution date hereof and on and as of the Closing Date, and each of the Issuers Company and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at Securities will have a valid and perfected lien on the Collateral and subject to no Liens, other than Liens permitted by the Indenture and the Security Documents;
(iii) 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
(iiiiv) the The sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(hi) On the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement Agreement, the Indenture and the Security Documents executed by the Issuers Company and the Subsidiary Guarantors and each such agreement shall be in full force and effecteffect at all times from and after the Closing Date.
(j) On the Closing Date, Amendment No. 6 to the Senior Credit Facility, in the form previously delivered to the Initial Purchaser, shall be in full force and effect or the Initial Purchaser shall have received, in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser, such consents, amendments or approvals required in connection with the Company's Senior Credit Facility in order to issue and sell the Securities and consummate the other transactions contemplated hereby. On or before the Closing Date, the Initial Purchasers Purchaser and counsel for the Initial Purchasers Purchaser shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably requestCompany.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall shall, in its sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On The Initial Purchaser shall have received an opinion in form and substance satisfactory to the Initial Purchaser, dated the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the IssuersCompany, substantially in the form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass on such matters. In addition, in form rendering their opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ may state that their opinion is limited to matters of Illinois, New York, Delaware corporate and substance satisfactory federal law. Such opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall be rendered to counsel for the Initial Purchasers, as to Purchaser at the matters described in Annex C heretorequest of the Company and shall so state therein.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersPurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the The Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final MemorandumPurchaser.
(d) The representations and warranties of the Issuers and the Guarantors Company contained in this Agreement shall be true and correct on and as of the Time of Execution 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’ Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent Other than as disclosed in the Memorandum, subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 Purchaser shall have received certificatesa certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chairman of the Board, President or any Executive Vice President and the Chief Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the The representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct on and as of the Time of Execution date hereof and on and as of the Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at 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 The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) The Company shall have received all necessary consents or waivers from the requisite lenders under the Credit Facility (as defined in the Offering Memorandum).
(i) The Company shall have received from each initial purchaser of the Notes from the Initial Purchaser an agreement to treat the receipt of the delayed draw special payment relating to such purchaser's agreement to schedule the closing date seven business days from the date of the Memorandum as ordinary income for tax purposes.
(j) On the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors Company and such agreement shall be in full force and effecteffect at all times from and after the Closing Date. On or before the Closing Date, the Initial Purchasers Purchaser and counsel for the Initial Purchasers Purchaser shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser. The Issuers Company shall furnish to the Initial Purchasers Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinionopinion and negative assurance statement, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ L.L.P.LLP, counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchasers substantially as set forth in Exhibit A hereto. In rendering such opinion and negative assurance statement, such counsel may rely as to matters of fact, to the matters described extent such counsel deems proper, on certificates or other written statements of official jurisdictions having custody of documents respecting the corporate existence or good standing of the entities referred to in Annex C heretosuch opinion and negative assurance statement.
(b) On the Closing Date, the Initial Purchasers shall have received the opinionopinion and negative assurance statement, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPllp, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinionopinion and negative assurance statement, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP llp shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, following execution of this Agreement, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, date the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The representations and warranties of the Issuers and the Guarantors 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 statements of the Issuers’ Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof hereof, in their capacity as officers of the Company, and not in their individual capacity, shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements included (or incorporated by reference) in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements included (or incorporated by reference) in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of except as described (or incorporated by reference) in the Issuers Pricing Disclosure Package and the Final Memorandum, neither the Company nor any of the Material its Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down dispute or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(gf) The Initial Purchasers shall have received certificatesa certificate from the Company, dated the Closing Date, signed on behalf of the Company by its Chairman of the Chief Board, President or any Executive Officer or Senior Vice President and the Chief Financial Officer of each or Corporate Controller, in their capacity as officers of the IssuersCompany and not in their individual capacity, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing DateDate (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects), and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;; and
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements included (or incorporated by reference) in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(hg) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement Indenture executed by the Issuers and the Guarantors Company and such agreement shall be in full force and effect.
(h) On the Closing Date, (i) the Initial Purchasers shall have received the Escrow Agreement executed by the Company, the Trustee and the Escrow Agent and such agreement shall be in full force and effect; (ii) the Company shall have deposited the Escrow Property equal to the Escrow Redemption Amount with the Escrow Agent in accordance with the Escrow Agreement; and (iii) the Trustee shall have a first-priority security interest in the Escrow Account and the Escrow Property pursuant to the Escrow Agreement. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors Company as they shall have heretofore reasonably requested from the IssuersCompany for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinionopinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, special counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, and substantially as to the matters described set forth in Annex C B-1 and B-2, respectively, hereto. In {N4389313.2} rendering such opinion, ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinionopinion and negative assurance letter, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent datedate (which date shall not be more than three business days prior to the Closing Date), the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; provided, that (x) each such representation and warranty that contains a materiality qualification in the text of such representation and warranty and (y) the representations and warranties set forth in Section 2(hh), (ii) and (jj) shall, in each case, be true and correct in all respects; the statements of the IssuersCompany’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct correct, in all material respects, on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 expected to have a Material Adverse Effect.
(g) The Initial Purchasers Representative shall have received certificatesa certificate from the Company, dated the Closing Date, signed on behalf of the Company by the two of its officers, including its Chief Executive Officer or {N4389313.2} Officer, President, any Senior Vice President, any executive officer, Chief Financial Officer of each of the IssuersOfficer, Controller, Treasurer or principal financial or accounting officer, to the effect thatthat to such officers’ knowledge after reasonable inquiry:
(i) the representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date; provided, that (x) each such representation and warranty that contains a materiality qualification in the text of such representation or warranty and (y) the representations and warranties set forth in Section 2(hh), (ii) and (jj) shall, in each of case, be true and correct in all respects; and the Issuers Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(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 knownknown to the Company or any Guarantor, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect; and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement Indenture executed by the Issuers Company, the Guarantors and the Guarantors Trustee, and such agreement shall be in full force and effecteffect at all times from and after the Closing Date.
(i) The Notes shall be eligible for clearance and settlement through The Depository Trust Company.
(j) The Representative shall have received evidence reasonably satisfactory to it that, at or prior to the time the Initial Purchasers purchase the Securities, an unconditional instruction (other than the condition of the completion of the issuance of the Notes) shall have been delivered to the trustee under the 2022 Notes Indenture to issue a notice of redemption to holders of such 2022 Notes for all outstanding 2022 Notes and moneys sufficient to satisfy such redemption payments shall have been deposited with the trustee for such Existing Notes, in accordance with the redemption procedures set forth in the 2022 Notes Indenture. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Representative and counsel for the Initial Purchasers. The Issuers Company and the Guarantors shall furnish to the Initial Purchasers Representative such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers Representative shall reasonably request.. {N4389313.2}
Appears in 1 contract
Sources: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to counsel for the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the IssuersCompany, substantially in the form of Exhibit A hereto. In rendering such opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall have received and substance satisfactory may rely upon such certificates and other documents and information as it may reasonably request to counsel for the Initial Purchasers, as to the matters described in Annex C heretopass on such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The representations and warranties of the Issuers and the Guarantors Company contained in this Agreement shall be true and correct on and as of the Time of Execution 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’ Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent Other than as disclosed in the Final Memorandum, subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 certificatesa certificate of each of the Company and the Guarantors, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer on behalf of each of the IssuersCompany and the Guarantors by its Chairman of the Board, President or any Senior Vice President and the Chief Financial Officer, to the effect that:
(i) the The representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution date hereof and on and as of the Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at 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, except as disclosed in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has had or would be reasonably likely to have a Material Adverse Effect; and
(iii) the The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors Company and such agreement shall be in full force and effecteffect at all times from and after the Closing Date.
(i) The Company shall have entered into the new senior secured revolving credit facility, dated as of the Closing Date, on the terms described in the Final Memorandum, by and among the Company, Deutsche Bank Trust Company Americas and the other lenders listed therein (the "Credit Facility"), which Credit Facility shall be in full force and effect as of the Closing Date, and shall have taken all other actions necessary to consummate the "other refinancing transactions" (as defined in the Final Memorandum). On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The --------------------------------------------------- obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in its sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) The Memorandum shall be in form and substance reasonably satisfactory to the Initial Purchasers. The Company 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 & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Company, in the form attached hereto as Exhibit A, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇. ▇▇▇▇▇▇ L.L.P., counsel for Esq., Senior Vice President, Legal and Strategic Affairs, of the IssuersCompany, in the form attached hereto as Exhibit B, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(bd) 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 for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(ce) On the date hereof, the The Initial Purchasers shall have received from the Independent Accountants PricewaterhouseCoopers LLP a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(df) The representations and warranties of the Issuers and the Guarantors Company contained in this Agreement shall be true and correct on and as of the Time of Execution 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’ Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed in all material respects all covenants and agreements and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such 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.
(eg) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(fh) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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.
(gi) The Initial Purchasers shall have received certificatesa 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 Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the The representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct in all material respects on and as of the Time of Execution date hereof and on and as of the Closing Date, and each of the Issuers and the Guarantors have Company has performed 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;
(ii) at 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 The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(hj) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors Company and such agreement shall be in full force and effecteffect at all times from and after the Closing Date.
(k) On the Closing Date, the Initial Purchasers shall have received the Escrow Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(l) On the Closing Date, the Company shall have irrevocably called for redemption of all of its 8 7/8% Senior Subordinated Notes due 2008 and shall provide evidence thereof reasonably satisfactory to the Initial Purchasers. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore theretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchasers Purchaser to purchase and pay for the Notes shall be subject subject, in each such Initial Purchaser's discretion, to the satisfaction or waiver, in the sole discretion accuracy of the Representative, representations and warranties of the following conditions Company contained herein as of the Closing Date as if made on or prior to and as of the Closing Date, to the accuracy of the statements of the Company's officers and representatives made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the The Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the an opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇, P.A., counsel for the Company, substantially in the form of ANNEX A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date and addressed to the Initial Purchasers, of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering , and the Company shall furnish to such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon counsel such certificates and other documents and information as it they may reasonably request for the purpose of enabling them to pass upon such matters.
(c) On the date hereof, the The Initial Purchasers shall have received from the Independent Accountants a Deloitte & Touche LLP comfort letter letters dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The representations and warranties of Subsequent to the Issuers and date hereof or, if earlier, the Guarantors contained in this Agreement shall be true and correct on and dates as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Issuers’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described which information is given in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereofthereto), subsequent except as set forth in the Offering Memorandum (i) the Company, the Subsidiaries or the Camping World Subsidiaries shall not have incurred any liabilities or obligations, direct or contingent, that are material to the date Company, the Subsidiaries and the Camping World Subsidiaries, taken as a whole, or entered into any transactions that are material to the business, condition (financial or other) or results of operations of the most recent financial statements in such Pricing Disclosure Package Company, the Subsidiaries and the Final MemorandumCamping World Subsidiaries, taken as a whole, and there shall not have been no event any change in the capital stock or developmentlong-term indebtedness of the Company that is material to the business, condition (financial or other) or results of operations of the Company, the Subsidiaries and the Camping World Subsidiaries, taken as a whole, and no information (ii) there shall not have become knownbeen any change or any development involving a prospective change, thatin or affecting the general affairs, individually condition (financial or other), results of operations, business, properties or assets of the Company, the Subsidiaries and the Camping World Subsidiaries, taken as a whole, the effect of which, in any case referred to in this clause (ii), is, in the aggregatesole judgment of the Initial Purchasers, has so material and adverse as to make it impractical or would be reasonably likely inadvisable to have a Material Adverse Effectproceed with the purchase and the delivery of the Notes as contemplated by the Offering Memorandum.
(e) The sale No order suspending the qualification or exemption from qualification of any of the Notes hereunder in any jurisdiction shall not have been issued and no proceeding for that purpose shall have been commenced or shall be enjoined (temporarily pending or permanently) on the Closing Datethreatened.
(f) Subsequent The Company shall have furnished to the date Initial Purchasers a certificate of the most recent financial statements in Chairman of the Pricing Disclosure Package Board or the Chief Executive Officer and the Final Memorandum (exclusive of any amendment principal financial or supplement thereto after the date hereof), none accounting officer of the Issuers nor any of the Material 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 certificatesCompany, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that the signers of such certificate have carefully examined the Offering Memorandum, any amendment or supplement to the Offering Memorandum, this Agreement and the other Transaction Documents and that:
(i) the The representations and warranties of each of the Issuers and the Guarantors contained Company in this Agreement are true and correct on and as of the Time of Execution and Closing Date with the same effect as if made on and as of the Closing Date, and each of the Issuers Date and the Guarantors have performed Company has complied with all covenants and the agreements and satisfied all the conditions on their its part to be performed or satisfied hereunder at on or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since Since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(g) After the execution and delivery of this Agreement, there shall not have been (i) any downgrading by Standard & Poor's Corporation ("S&P") in the rating of the Notes; (ii) any downgrading by ▇▇▇▇▇'▇ Investors Service Inc. ("MOODY'S") in the rating of the Notes; or (iii) any notice given by S&P or Moody's of any intended or potential downgrading in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) On the Closing Date, the Initial Purchasers shall have received the Notes Registration Rights Agreement substantially in the form of ANNEX B hereto executed by the Issuers Company and the Guarantors AGI and such agreement shall be in full force and effecteffect at all times from and after the Closing Date.
(i) The Indenture shall have been duly executed and delivered by the Company and the Trustee, and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(j) The Initial Purchasers shall have received evidence, reasonably satisfactory to them, that (i) the Camping World Acquisition shall have been consummated in accordance with the terms of the CWI Stock Purchase Agreement and (ii) the initial funding shall have occurred under the Credit Agreement and AGI shall have received gross cash proceeds therefrom sufficient to effect the Camping World Acquisition and the replacement of the existing AGI senior secured financing facility with the senior secured financing facility provided under the Credit Agreement as set forth in the Offering Memorandum.
(k) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(l) The representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Company shall have performed in all material respects all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Offering Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(m) The Initial Purchasers shall have received copies of the executed CWI Stock Purchase Agreement and the executed Credit Agreement, certified by the Secretary or an Assistant Secretary of the Company as being true, correct and complete. The Credit Agreement shall be in form and substance reasonably satisfactory to the Initial Purchasers.
(n) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules documents or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors other information as they shall it may have heretofore reasonably requested from the IssuersCompany. All such documentsIf any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, opinions, certificates, letters, schedules or instruments delivered pursuant to if any of the opinions and certificates mentioned above or elsewhere in this Agreement will comply with the provisions hereof only if they are reasonably shall not be satisfactory in all material respects form and substance to the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers and counsel for hereunder may be cancelled on, or any time prior to, the Closing Date by the Initial Purchasers. Notice of such cancellation shall be given to the Company in accordance with Section 13. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules letters and instruments documents in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall be subject to the satisfaction or waiver, in the sole discretion of the Representative, of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) 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 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 performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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, dated the Closing Date, signed by the Chief Executive Officer or Officer, Chief Financial Officer or the Senior Vice President – Finance and Treasurer of each of the Issuers, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Notes shall be hereunder are subject to the satisfaction or waiveraccuracy, in when made and on the sole discretion of the Representativeapplicable Delivery Date, of the following conditions on or prior representations and warranties of the Company contained herein, to the Closing Dateperformance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received the opinion, dated as of the Closing Date discovered and addressed disclosed to the Initial PurchasersCompany prior to or on such Delivery Date that the Offering Memorandum or any amendment or supplement thereto, in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for to the Initial Purchasers, with respect contains an untrue statement of any material fact or omits to certain legal matters relating state a material fact necessary in order to this Agreement and such other related matters as make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b) Proskauer Rose LLP, counsel to the Company, shall have furnished to the Initial Purchasers may its written opinion addressed to the Representatives and dated such Delivery Date, in form and substance reasonably require. In rendering such opinionsatisfactory to the Initial Purchasers, substantially in the form of Exhibit 1 hereto.
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, General Counsel of the Company shall have furnished to the Initial Purchasers his written opinion addressed to the Representatives and dated such Delivery Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit 2 hereto.
(d) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received furnished to the Initial Purchasers its written opinion, as counsel to the Initial Purchasers, addressed to the Representatives and may rely upon dated such certificates Delivery Date, in form and other documents and information as it may substance reasonably request satisfactory to pass upon such mattersthe Initial Purchasers.
(ce) On At the date hereoftime of execution of this Agreement, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereofor letters, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer addressed to the comfort letter Representatives and dated the date hereof and reaffirm or update as of a more recent date, (i) confirming that they are independent public accountants within the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The representations and warranties meaning of the Issuers Securities Act and are in compliance with the Guarantors contained in this Agreement shall be true and correct on and as applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Time of Execution Commission 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 (ii) stating, as of the date made and on and hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or Offering Memorandum, as of a date not more than five days prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to initial purchasers in connection with registered public offerings.
(f) With respect to the letter of the Accountants referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "INITIAL COMFORT LETTER"), the Company shall have furnished to the Initial Purchasers a letter (the "BRING-DOWN COMFORT LETTER") of such accountants, addressed to the Representatives and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereofbring-down letter), none the conclusions and findings of the Issuers nor any of the Material Subsidiaries shall have sustained any loss or interference such firm with respect to its business or properties from fire, flood, hurricane, accident or the financial information and other calamity, whether or not matters 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
(i) the representations initial letters and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory confirming in all material respects to the Initial Purchasers conclusions and counsel for findings set forth in the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, initial letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Indenture (Schein Henry Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation respective obligations of the Initial Purchasers to purchase and pay for the Notes shall be hereunder are subject to the satisfaction or waiveraccuracy, in when made and on the sole discretion of the RepresentativeClosing Date, of the representations and warranties of the Company and the Guarantors contained herein, to the performance by the Company and the Guarantors of their respective obligations hereunder, and to each of the following conditions additional terms and conditions:
(a) No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the Closing Date:Date that the Offering Memorandum contains an untrue statement of a fact which, in the opinion of counsel for the Initial Purchasers, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(ab) On All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Notes, the Guarantees, the Exchange Notes, the Exchange Guarantees, the Registration Rights Agreement, the Indenture and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company and the Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Jones, Walker, Waechter, Poitevent, Carrère & ▇▇▇▇▇▇▇, L.L.P. shall have furnished to the Initial Purchasers its written opinion, as counsel to the Company and the Guarantors, addressed to the Initial Purchasers and dated the Closing Date, substantially in the form of Exhibit B hereto.
(d) The Initial Purchasers shall have received from counsel for the Initial Purchasers such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Notes, the Offering Memorandum and other related matters as ▇▇▇▇▇▇ Brothers Inc. may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) At the time of execution of this Agreement, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinionfrom PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial PurchasersPurchasers and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasersdate hereof (or, with respect to certain legal matters relating to this Agreement and such other related matters involving changes or developments since the respective dates as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants 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 of which specified financial information is given in the Pricing Disclosure Package. On the Closing DateOffering Memorandum, 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 date not more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The 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 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 performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or than five days prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings.
(f) With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letter"), the Company shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the most recent bring-down letter), the conclusions and findings of such firm with respect to the financial statements information and other matters covered by the initial letter and (iii) confirming in such Pricing Disclosure Package all material respects the conclusions and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or findings set forth in the aggregate, has or would be reasonably likely to have a Material Adverse Effectinitial letter.
(eg) The sale Neither the Company, any Guarantor nor any of the Notes hereunder their respective subsidiaries shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to have sustained, since the date of the most recent latest audited financial statements included in the Pricing Disclosure Package and the Final Memorandum (exclusive of Offering Memorandum, any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material Subsidiaries shall have sustained any material loss or interference with respect to its business or properties from fire, floodexplosion, hurricane, accident flood or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down dispute or work stoppage or from any legal court or governmental proceedingaction, order or decree, which loss otherwise than as set forth or interference, individually or contemplated in the aggregateOffering Memorandum; and, has since such date, there shall not have been any material adverse change in the capital stock or would be reasonably likely to have long-term debt of the Company, any Guarantor or any of their respective subsidiaries or any material adverse change, or any development involving a Material Adverse Effectprospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, any Guarantors and their respective subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum.
(gh) The Company and each Guarantor shall have furnished or caused to be furnished to the Initial Purchasers shall have received certificates, dated on the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer Date certificates of each officers of the Issuers, Company and each Guarantor satisfactory to the effect that:
▇▇▇▇▇▇ Brothers Inc. (i) as to the accuracy of the representations and warranties of the Company and each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on Guarantor herein at and as of the Closing Date, (ii) as to the performance by the Company and each Guarantor in all material respects of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on of their part obligations hereunder to be performed or satisfied hereunder at or prior to the Closing Date;, (iii) providing a detailed schedule of the number of vessels operated by the Company and its subsidiaries, the location of such vessels and the average age of such vessels (including details of the calculation thereof) as of April 30, 2002, (iv) providing a detailed schedule of the "Operating Data" included under the "Summary Historical Consolidated Financial and Other Data" in the Offering Memorandum (including details of the calculation thereof), (v) providing a detailed schedule of the utilization rates and average number of vessels included under "Management's Discussion and Analysis of Financial Condition and Results of Operations" (including details of the calculation thereof) and (vi) as to such other matters as ▇▇▇▇▇▇ Brothers Inc. may reasonably request.
(i) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations, and (ii) at the Closing Dateno such organization shall have publicly announced that it has under surveillance or review, since the date hereof or since the date with possible negative implications, its rating of any of the most recent financial statements Company's debt securities.
(j) The Notes shall have been designated for trading on the PORTAL MarketSM.
(k) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the Pricing Disclosure Package and New York Stock Exchange or 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 American Stock Exchange or in the aggregateover-the-counter market, has or would be reasonably likely to trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a Material Adverse Effectbanking moratorium shall have been declared by Federal or state authorities; and
(iii) the sale United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the judgment of ▇▇▇▇▇▇ Brothers Inc., impracticable or inadvisable to proceed with offering or delivery of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On being delivered on the Closing DateDate or which, in the Initial Purchasers shall have received judgment of ▇▇▇▇▇▇ Brothers Inc. would materially and adversely affect the Registration Rights Agreement executed by financial markets or the Issuers and the Guarantors and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel markets for the Initial Purchasers shall have received such further documents, opinions, certificates, letters Notes and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors as they shall have heretofore reasonably requested from the Issuersother debt securities. All such documents, opinions, certificates, letters, schedules evidence and certificates mentioned above or instruments delivered pursuant to elsewhere in this Agreement will comply shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Notes Bonds shall be subject to the satisfaction or waiver, in accuracy on the sole discretion date hereof and on the Closing Date of the Representative, representations and warranties made herein on the part of the following conditions Company and of any certificates furnished by the Company on or prior the Closing Date and to the Closing Datefollowing conditions:
(a) On At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have received the opinionfrom ▇▇▇▇ ▇. ▇▇▇▇, dated as Esq., Senior Counsel-Corporate and Securities of the Closing Date Entergy Services, Inc., and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.& Priest LLP opinions, counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On dated the Closing Date, substantially in the Initial Purchasers shall have received the opinionforms set forth in Exhibits A and B hereto, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, respectively (it being understood that ▇▇. ▇▇▇▇ may rely on an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel L.L.P. as to matters in his opinion relating to Texas law provided that the Initial Purchasers are addressees to, or are otherwise entitled to rely on, such opinion), (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Initial Purchasers, with respect and (ii) if the Offering Memorandum shall be supplemented after being furnished to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering for use in offering the Bonds, with changes therein to reflect such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matterssupplementation.
(c) On At the date hereofClosing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel Counsel for the Initial Purchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the Closing Date.
(d) At the Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP, the Company's independent certified public accountants (the "Accountants"), a letter dated the Closing Date and addressed to the Initial Purchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and any 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 information statements, if any, incorporated by reference in the Pricing Disclosure Package. Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2002 to a specified date not more than five days prior to the date of such letter, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; and (C) at a specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholders' equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement.
(e) At the Closing Date, the Initial Purchasers shall have received a certificate signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the Company, to the effect that (i) the representations and warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Purchase Agreement to be performed or complied with by the Company at or prior to the Closing Date and (iii) since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in each case other than as referred to in, or contemplated by, the Offering Memorandum, as it may then be amended or supplemented.
(f) At the Closing Date, the Initial Purchasers shall have received duly executed counterparts of the Supplemental Indenture.
(g) Between the date hereof and the Closing Date, no default (or an event which, with the giving of notice or the passage of time or both, would constitute a default) under the Mortgage (as defined therein) shall have occurred.
(h) On or prior to the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated Company evidence reasonably satisfactory to the Initial Purchasers that the Bonds have received ratings of Baa3 or better from ▇▇▇▇▇'▇ Investors Service, Inc. and BBB- or better from Standard & Poor's Ratings Services.
(i) Between the date hereof and the Closing Date, neither ▇▇▇▇▇'▇ Investors Service, Inc. nor Standard & Poor's Ratings Services shall have lowered its rating of any of the Company's outstanding first mortgage bonds in any respect.
(j) Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, which, in the reasonable opinion of Barclays Capital Inc. and Citigroup Global Markets Inc., as representatives of the Initial Purchasers, materially impairs the investment quality of the Bonds.
(k) All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance satisfactory to counsel Counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(dl) The representations and warranties of the Issuers and the Guarantors contained in this Agreement Company shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Issuers’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, furnish the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and with additional conformed copies of such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs documents as may be reasonably requested. If any of the Issuers conditions specified in this Section 6 shall not have been fulfilled, this Purchase Agreement may be terminated by Barclays Capital Inc. and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documentsCitigroup Global Markets Inc., opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for on behalf of the Initial Purchasers. The Issuers shall furnish , upon notice thereof to the Initial Purchasers Company. Any such conformed copies termination shall be without liability of such documentsany party to any other party, opinions, certificates, letters, schedules except as otherwise provided in paragraph (d) of Section 5 and instruments in such quantities as the Initial Purchasers shall reasonably requestSection 9.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) 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 Paul, ▇▇▇iss, Rifkind, Whar▇▇▇ & ▇arr▇▇▇▇▇ L.L.P., ▇▇ecial outside counsel for SDI Acquisition and, at and as of the IssuersEffective Time, the Company and the Guarantor, in form and substance satisfactory to counsel for the Initial Purchasers, substantially in the form attached hereto as to the matters described in Annex C hereto.Exhibit C.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahi▇▇ ▇▇▇▇▇▇ & ▇ein▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel unsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Cahi▇▇ ▇▇▇▇▇▇, ▇▇▇▇ & ▇ein▇▇▇ ▇▇▇▇▇▇▇ LLP shall ll have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The representations and warranties of the Issuers and the Guarantors SDI Acquisition contained in this Agreement shall be true and correct on and as of the Time of Execution date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of officers of SDI Acquisition, the Issuers’ officers Company and the Guarantor made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; SDI Acquisition, the Issuers Company and the Guarantor shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has had or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of Company or the Material Subsidiaries Subsidiary 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.with
Appears in 1 contract
Sources: Purchase Agreement (Scot Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers. In rendering such opinion, Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, regulatory counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(bc) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial PurchasersRepresentative, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(cd) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure PackagePackage and other customary matters. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final MemorandumMemorandum and other customary matters.
(de) The representations and warranties of the Issuers and the Guarantors 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 statements of the Issuers’ Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such 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.
(ef) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) by a court of competent jurisdiction on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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 certificatesa certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chairman of the Board, President or any Executive Vice President or the Chief Executive Financial Officer or Chief Financial Officer of each of the IssuersLegal Officer, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently)) by a court of competent jurisdiction.
(h) On the Closing Date, the Issuer shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and such agreement shall be in full force and effectcopies thereof. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇, special counsel for the Company, substantially in the form set forth on Exhibit B hereto, with such changes thereto as are acceptable to counsel for the Initial Purchasers.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the IssuersCompany, substantially in the form and substance satisfactory set forth on Exhibit C hereto, with such changes thereto as are acceptable to counsel for the Initial Purchasers. In addition, as the Initial Purchasers shall have received a letter or letters permitting it to rely on any opinions rendered by counsel to MergerCo, the matters described Company and Globe Holdings in Annex C heretoconnection with the Transactions.
(bc) 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 ▇▇▇▇▇▇, ▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(cd) On the date hereof, the The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(de) The representations and warranties of the Issuers and the Guarantors Company contained in this Agreement shall be true and correct on and as of the Time of Execution 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’ Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, development that, individually or in the aggregate, has or would reasonably be reasonably likely expected to have a Material Adverse Effect.
(ef) The Neither the sale of the Notes hereunder nor any of the Related Transactions shall not be enjoined (temporarily or permanently) on the Closing Date.
(fg) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none the conduct of the Issuers nor any business and operations of the Material Subsidiaries Company or the Subsidiary shall not have sustained any loss or interference been interfered with respect to its business or properties from by strike, fire, flood, hurricane, accident or other calamity, calamity (whether or not covered insured) or by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal court or governmental proceedingaction, order or decree, which and, except as otherwise stated therein, the properties of the Company or the Subsidiary shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which, individually or in the aggregate, has or would not reasonably be reasonably likely expected to have a Material Adverse Effect.
(gh) The Initial Purchasers shall have received certificatesa certificate of the Company, dated the Closing Date, signed by its Chairman of the Chief Executive Officer Board, President or any Vice President and the Chief Financial Officer of each of the Issuers(in their respective capacities as such), to the effect that:
(i) the The representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct on and as of the Time of Execution and on date hereof and as of the Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at 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 events have occurred, and no information has become known, known nor does any condition exist that, individually or in the aggregate, has or would reasonably be reasonably likely expected to have a Material Adverse Effect; and;
(iii) Neither the sale of the Notes nor any of the Related Transactions hereunder has not been enjoined (temporarily or permanently).; and
(hiv) On The Related Transactions have been consummated or are being consummated on the Closing DateDate concurrently with the closing hereunder. As used herein, "Related Transactions" means (i) the Recapitalization of Globe Holdings (as defined in the Final Memorandum) pursuant to the Merger Agreement (as defined below), (ii) the Merger (as defined in the Final Memorandum), (iii) the Asset Drop Down (as defined in the Final Memorandum), (iv) the entry by the Company into the Senior Credit Facility and the initial borrowing by the Company of approximately $120 million thereunder, (v) the repayment of all outstanding obligations under the Old Credit Facility (as defined in the Final Memorandum) and the release of all liens on property of the Company granted in connection therewith and (vi) the other transactions contemplated by the Merger Agreement. As used herein, the Initial Purchasers shall have received Merger Agreement means the Registration Rights Agreement executed and Plan of Merger dated June 23, 1998, by and among Globe Holdings and Globe Acquisition Company, a newly formed affiliate of Code ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ III, L.P., as amended through the Issuers and the Guarantors and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably requestdate hereof.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinionopinions, dated as of the Closing Date and addressed to the Initial Purchasers, of Ropes and ▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.PLLP, counsel for the IssuersIssuers and NB Acquisition, in form and substance satisfactory to counsel for the Initial Purchasers, as substantially to the matters described effect set forth in Annex C hereto.Exhibit B and Exhibit C.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The representations and warranties of the Issuers and the Guarantors NB Acquisition contained in this Agreement shall be true and correct in all material respects on and as of the Time date hereof and the representations and warranties of Execution the Issuers contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Issuers’ and NB Acquisition’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Issuers and NB Acquisition shall have performed all covenants and agreements and satisfied all conditions on their respective part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor or any of the Material 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 certificatesa certificate of each of the Issuers, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer on behalf of each of the IssuersIssuers by its respective Chairman of the Board, President or any Senior Vice President and the Chief Financial Officer (or similar position), to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, except as disclosed in the Final Memorandum, since the date hereof or since the date of the most recent financial statements in the 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) to the knowledge of the Issuers, the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and such agreement shall be in full force and effect.
(i) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(j) The Notes shall be designated Portal-eligible securities in accordance with the rules and regulations of the NASD.
(k) On the Closing Date, the Company shall have entered into the Credit Agreement in form and substance reasonably satisfactory to the Initial Purchasers; and
(l) The “Transaction,” as such term is defined in the Final Memorandum, will be consummated substantially as described in the Final Memorandum. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Issuers, NB Acquisition and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersIssuers and NB Acquisition. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Nb Finance Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Shares shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) 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 Shack & ▇▇▇▇▇▇, P.C. ("Company Counsel"), counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers. In rendering such opinion, Company Counsel may rely upon such certificates and other documents and information as it may reasonably require to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("FCC Counsel"), FCC counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers. In rendering such opinion, FCC Counsel may rely upon such certificates and other documents and information as it may reasonably require to pass upon such matters.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇ Breed ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.("Tax Counsel"), tax counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers. In rendering such opinion, Tax Counsel may rely upon such certificates and other documents and information as it may reasonably require to the matters described in Annex C heretopass upon such matters.
(bd) 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 ▇▇▇▇▇▇, ▇▇▇▇ Shearman & ▇▇▇▇▇▇▇▇ LLPSterling, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters manners as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ Shearman & ▇▇▇▇▇▇▇▇ LLP Sterling shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(ce) On the date hereof, the The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(df) The representations and warranties of the Issuers and the Guarantors Company contained in this Agreement shall be true and correct on and as of the Time of Execution 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’ Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final 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 Pricing Disclosure Package and the Final Offering Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would could reasonably be reasonably likely expected to have a Material Adverse Effect.
(eg) The sale of the Notes Shares hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(fh) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none the business or operations of the Issuers nor any of the Material Subsidiaries Company shall not have sustained any loss or interference been interfered with respect to its business or properties from by 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 and the Company and its properties shall not have sustained any loss or damage, whether or not covered by insurance, as a result of any such occurrence, except any such interference, individually loss or in the aggregatedamage which has not had, has or would and could not reasonably be reasonably likely expected to have have, a Material Adverse Effect.
(gi) The Initial Purchasers shall have received certificatescertificates of the Company, dated the Closing Date, signed on behalf of the Company by any two of its Chairman of the Board, Chief Executive Officer or Officer, President, Chief Financial Officer of each of the Issuers, and any Senior Vice President to the effect that:
(iA) the The representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct on and as of the Time of Execution date hereof and on and as of the Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(iiB) at 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 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, known that individually or in the aggregate, has or would could reasonably be reasonably likely expected to have a Material Adverse Effect; and;
(iiiC) the The sale of the Notes Shares hereunder has not been enjoined (temporarily or permanently); and
(D) Such other information as the Initial Purchasers may reasonably request.
(hj) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors Company and such agreement shall be in full force and effecteffect at all times from and after the Closing Date. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments agreements relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors Company as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.Dechert LLP, counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial PurchasersRepresentative. In rendering such opinion, Dechert LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to the matters described in Annex C heretopass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPllp, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP llp shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Company Independent Accountants a customary comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited or pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Company Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum.
(d) On the date hereof, the Initial Purchasers shall have received from the ClosetMaid Independent Accountants a customary comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the ClosetMaid Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(de) 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 statements of the IssuersCompany’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(ef) The sale of the Notes Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(fg) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 expected to have a Material Adverse Effect.
(gh) The Initial Purchasers shall have received certificatesa 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 Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and each warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Issuers Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package 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 knownknown to the Company, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(hi) On the Closing Date, the Initial 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 effecteffect and in form and substance reasonably satisfactory to the Representative. On the Closing Date, the Indenture shall continue to be in full force and effect and the Initial Purchasers shall have received an executed copy of the Authentication Order (as defined in the Indenture) required by Section 2.02 of the Indenture with respect to the issuance of the New Notes.
(j) On the date hereof, the Initial Purchasers shall have received a certificate of the Company, signed on behalf of the Company by its Chief Financial Officer regarding ClosetMaid’s financial information for the year ended September 30, 2017, substantially in the form attached hereto as Exhibit C.
(k) On the Closing Date, the Initial Purchasers shall have received a certificate of the Company, signed on behalf of the Company by its Chief Financial Officer regarding ClosetMaid’s financial information for the year ended September 30, 2017, substantially in the form attached hereto as Exhibit C. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company, the Guarantors and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company and the Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.Dechert LLP, counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial PurchasersRepresentative. In rendering such opinion, Dechert LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to the matters described in Annex C heretopass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPllp, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP llp shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) 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 statements of the IssuersCompany’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 expected to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received certificatesa 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 Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and each warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Issuers Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package 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 knownknown to the Company, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Indenture and the Registration Rights Agreement executed by the Issuers Company and the Guarantors and such agreement agreements shall be in full force and effecteffect and in form and substance reasonably satisfactory to the Representative. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company, the Guarantors and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company and the Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Notes Bonds shall be subject to the satisfaction or waiver, in accuracy on the sole discretion date hereof and on the Closing Date of the Representative, representations and warranties made herein on the part of the Funding Corporation and the Company and of any certificates furnished by the Funding Corporation or the Company on the Closing Date and to the following conditions on or prior to conditions: At the Closing Date:
, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (athe “Holding Company Act”) On authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement. At the Closing Date, the Initial Purchasers shall have received the opinionfrom ▇▇▇▇ ▇▇▇▇▇▇ Child & ▇▇▇▇▇▇▇, dated as of the Closing Date Professional Association; ▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP; and addressed to the Initial PurchasersFriday, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP as counsel to the Company; and ▇▇▇▇▇▇ L.L.P.▇▇▇▇ & Priest LLP, as counsel for to the IssuersFunding Corporation, opinions, dated the Closing Date, substantially in form the forms set forth in Exhibits A, B, C and substance satisfactory to counsel 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, as and (ii) if the Offering Memorandum shall be supplemented after being furnished to the matters described Initial Purchasers for use in Annex C hereto.
(b) On offering the Bonds, with changes therein to reflect such supplementation. At the Closing Date, the Initial Purchasers shall have received from Counsel for the Initial Purchasers an opinion, dated the Closing Date, substantially in the form and substance satisfactory set forth in Exhibit E hereto, with such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the Closing Date. On or prior to the date this Purchase Agreement became effective, the Initial PurchasersPurchasers shall have received from Deloitte & Touche LLP, the Company’s independent certified public accountants (the “Accountants”), a letter dated as of the Closing Date and addressed to the Initial PurchasersPurchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the “AICPA”) Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and incorporated by reference in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of ▇▇▇▇▇▇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, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPInterim Financial Information, counsel on the latest unaudited financial statements, if any, incorporated by reference in the Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2003 to a specified date not more than five days prior to the date of such letter, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (C) at the date of the latest available balance sheet read by the Accountants, and at a subsequent specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholders’ equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (D) for the period from the closing date of the most recent income statement incorporated by reference in the Offering Memorandum to the closing date of the latest available income statement read by the Accountants, there were any decreases, as compared to the corresponding period in the preceding year, in operating revenues, operating income or net income, except in all instances for decreases which the Offering Memorandum discloses have occurred or may occur or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company set forth in the Offering Memorandum, and set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinionresults obtained from the application of specified readings, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates inquiries and other documents appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and information as it may reasonably request found them to pass upon such matters.
(c) On be in agreement. At the date hereofClosing Date, the Initial Purchasers shall have received from (i) a certificate signed by the Independent Accountants President, a comfort letter Vice President, the Treasurer or an Assistant Treasurer of each of the Funding Corporation and the Company, respectively, to the effect that (A) the representations 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) a certificate, dated the Closing Date and signed by the President or a Vice President of the Company that since the most recent date hereofas of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in form each case other than as referred to in, or contemplated by, such Offering Memorandum, as it may then be amended or supplemented, and substance satisfactory (iii) a certificate, dated the Closing Date and signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of Entergy Corporation (“Entergy”), to counsel for the effect that since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of Entergy and its subsidiaries considered as a whole. At the Closing Date, the Initial Purchasers with respect to shall have received duly executed counterparts of the audited and any unaudited financial information in the Pricing Disclosure PackageTrust Indenture. On At the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) 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 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 performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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 certificatesletter, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuersconfirming, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or a date not more than five days prior to the Closing Date;
(ii, the statements contained in the letter delivered pursuant to Section 6(d) at hereof. Between the date hereof and the Closing Date, since no default (or an event which, with the date hereof giving of notice or since the date passage of time or both, would constitute a default) under the most recent financial statements Lease, the Lease Indenture (as defined in the Pricing Disclosure Package and Offering Memorandum) or the Final Memorandum (exclusive of any amendment Trust Indenture shall have occurred. On 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 prior to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received from the Registration Rights Agreement executed by Company evidence reasonably satisfactory to the Issuers Initial Purchasers that the Bonds have received ratings of _______ or better from ▇▇▇▇▇’▇ Investors Service, Inc. and ________or better from Standard & Poor’s Ratings Services. Between the Guarantors date hereof and such agreement shall be in full force and effect. On or before the Closing Date, neither ▇▇▇▇▇’▇ Investors Service, Inc. nor Standard & Poor’s Ratings Services shall have lowered its rating of any of the Bonds or the Company’s outstanding first mortgage bonds in any respect, and no rating agency shall have publicly announced that it has placed under surveillance or review, with possible negative implications, its rating (or expected rating) of the Bonds or any security of the Company. Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, or the Entergy System as a whole as it affects the Company, which, in the reasonable opinion of [▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Citigroup Global Markets Inc., as representatives of the Initial Purchasers,] [the Initial Purchasers] materially impairs the investment quality of the Bonds. The Bonds shall, upon delivery to the Initial Purchasers in accordance with this Purchase Agreement, be secured by notes in accordance with the Trust Indenture; the conditions precedent to a refunding, as set forth in the Participation Agreement (including, without limitation, Sections 2(d) and 11(c) thereof) and the Refunding Agreements (including, without limitation, Section 5 thereof), shall have been met prior to the issuance and delivery of such notes, with none of such conditions precedent having been waived by the Funding Corporation, the Company or the Trustee without the consent of the Initial Purchasers. The opinions of counsel required to be delivered by the first two sentences of Section 11(c)(6) of the Participation Agreement as a condition precedent to a refunding shall also be addressed and delivered to the Initial Purchasers, except for the opinions of Special Counsel, Special NRC Counsel and Special Mississippi Counsel to the Owner Participants and the opinion of the Lessee’s Special Louisiana Counsel, all as described and/or defined in the Participation Agreement, it being understood that such opinions of counsel may be confirmations by counsel of opinions previously delivered by such counsel in connection with the transactions described in or contemplated by the Participation Agreement, provided that such confirmations of opinions shall be dated the Closing Date, shall confirm the previously delivered opinions as of the Closing Date, and shall either be addressed to the Initial Purchasers or shall state that the Initial Purchasers may rely upon the previously delivered opinions, as so confirmed, as if addressed to them. The opinions of counsel required to be delivered to the Trustee pursuant to Section 2.04(e) of the Trust Indenture shall also be addressed and delivered to the Initial Purchasers. All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance to Counsel for the Initial Purchasers. The Funding Corporation and the Company shall furnish the Initial Purchasers shall have received with additional conformed copies of such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs documents as may be reasonably requested. If any of the Issuers conditions specified in this Section 6 shall not have been fulfilled, this Purchase Agreement may be terminated by [▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documentsCitigroup Global Markets Inc., opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for on behalf of the Initial Purchasers. The Issuers shall furnish ,] [the Initial Purchasers] upon notice thereof to the Initial Purchasers Company. Any such conformed copies termination shall be without liability of such documentsany party to any other party, opinions, certificates, letters, schedules except as otherwise provided in paragraph (d) of Section 5 and instruments in such quantities as the Initial Purchasers shall reasonably requestSection 9.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Notes and the Guarantees. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Notes shall be and the Guarantees are subject to the satisfaction absence from any certificates, opinions, written statements or waiver, in letters furnished to the sole discretion Initial Purchaser pursuant to this Section 8 of the Representative, of any misstatement or omission and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(ai) On The Initial Purchaser shall have received an opinion in form and substance reasonably satisfactory to the Initial Purchaser, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Company covering the matters in substantially the form set forth on Exhibit B hereto.
(ii) The Initial Purchasers Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for to the Initial PurchasersPurchaser, dated the Closing Date, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(ciii) On the date hereof, the The Initial Purchasers Purchaser shall have received from Deloitte & Touche LLP, independent public accountants for the Independent Accountants a comfort letter dated Company and Picochip, on each of the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer Purchaser and counsel to the comfort letter Initial Purchaser, letters dated the date hereof and reaffirm the Closing Date confirming that is an independent public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or update as of a more recent date, the information stated incorporated by reference in the comfort letter dated Disclosure Package and the date hereof and similarly address the audited and any unaudited financial information in the Final Offering Memorandum.
(div) The Initial Purchaser shall have received from each of the officers and directors listed on Schedule IV hereto an executed Lock-Up Agreement in substantially the form of Exhibit C hereto.
(v) The representations and warranties of the Issuers Company and each of the Guarantors contained in this Agreement shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements Company and each 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 Guarantors shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or any of the Guarantors or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the date business, condition (financial or other), properties, or results of operations of the most recent financial statements Company or any Subsidiary or Guarantor, not disclosed in such Pricing the Disclosure Package and the Final Offering Memorandum that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, there shall have been no or (ii) any event or developmentdevelopment relating to or involving the Company or any Subsidiary or Guarantor, and no information shall have become known, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, individually or in the aggregateopinion of the Company and its counsel or the Initial Purchaser and its counsel, has requires the making of any addition to or would be reasonably likely change in the Disclosure Package and the Offering Memorandum in order to have state a Material Adverse Effectmaterial fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(eviii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. The representations and warranties of the Company and each of the Guarantors contained in this Agreement are true and correct in all material respects as if made on and as of the Closing Date (other than representations and warranties qualified by materiality, in which case such representations shall be true and correct in all respects) and, as of the Closing Date the Company and each of the Guarantors shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
b. None of the issuance and sale of the Notes hereunder shall not be Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents have been enjoined (temporarily or permanently) on and no restraining order or other injunctive order has been issued; and there has not been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Closing DateCompany or any of the Guarantors or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(f) c. 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 Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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 there has 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
occurred (i) any change, or any development involving a prospective change, in or affecting the representations and warranties business, condition (financial or other), properties, or results of each operations of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing DateCompany or any Subsidiary or Guarantor, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements not disclosed in the Pricing Disclosure Package and the Final Offering Memorandum that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (exclusive of ii) any amendment or supplement thereto after the date hereof), no event or development has occurredrelating to or involving the Company or any Subsidiary or Guarantor, and no information has become known, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale opinion of the Notes hereunder has Company and its counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not been enjoined (temporarily or permanently)misleading.
(hix) On Each of the Closing Date, Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers Purchaser and shall have received been executed and delivered by all the Registration Rights Agreement executed by respective parties thereto (other than the Issuers Initial Purchaser) and the Guarantors and such agreement shall be in full force and effect. On , and there shall have been no material amendments, alterations, modifications or before waivers of any provision thereof since the date of this Agreement.
(x) All proceedings taken in connection with the issuance of the Notes and the Guarantees and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser.
(xi) 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 any of the Guarantors, or (B) it is reviewing its rating assigned to any debt securities of the Company or any of the Guarantors with a view to possible downgrading, or with negative implications, or direction not determined.
(xii) The Company and each of the Guarantors 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) At the Closing Date, the Initial Purchasers Company and counsel for each of the Guarantors and the Trustee shall have entered into the Indenture and the Initial Purchasers Purchaser shall have received such further documentscounterparts, opinionsconformed as executed, certificates, letters thereof and schedules or instruments relating to the business, corporate, legal Notes and financial affairs the Guarantees shall have been duly executed and delivered by the Company and each of the Issuers Guarantors and duly authenticated by the Guarantors as they shall have heretofore reasonably requested from the IssuersTrustee. All such documents, opinions, certificates, letters, schedules schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for to the Initial PurchasersPurchaser. The Issuers Company and each of the Guarantors shall furnish to the Initial Purchasers Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules schedules, documents and instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) 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 ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.Dechert LLP, counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial PurchasersRepresentative. In rendering such opinion, Dechert LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to the matters described in Annex C heretopass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPllp, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP llp shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) 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 statements of the IssuersCompany’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 expected to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received certificatesa 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 Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and each warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Issuers Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package 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 knownknown to the Company and the Guarantors, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and the Guarantors and such agreement shall be in full force and effecteffect and in form and substance reasonably satisfactory to the Representative.
(i) On or before the Closing Date, the Company shall have delivered to the trustee under the 2022 Notes Indenture an irrevocable notice of redemption in accordance with the provisions of the 2022 Notes Indenture (a copy of which shall be delivered to the Initial Purchasers) for all of its outstanding 2022 Notes.
(j) On the Closing Date, the Indenture shall continue to be in full force and effect and the Initial Purchasers shall have received an executed copy of the Authentication Order (as defined in the Indenture) required by Section 2.02 of the Indenture with respect to the issuance of the Notes. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company, the Guarantors and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company and the Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Notes shall be are subject to the satisfaction or waiveraccuracy, in the sole discretion when made and on and as of the Representative, of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(i) The Initial Purchasers Purchaser shall have received the opinion, dated as of the Closing Date opinions in form and addressed substance reasonably satisfactory to the Initial PurchasersPurchaser, dated the Closing Date, of ▇H▇▇▇▇▇ and B▇▇▇▇, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of King & ▇Wood Mallesons, counsel to the Company, with respect to Global Technology, Inc. and covering the matters set forth on Exhibit D hereto, and of M▇▇▇▇▇ L.L.P.and C▇▇▇▇▇ (Hong Kong) LLP, counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the Company, with respect to Prime World International Holdings, Ltd. and covering the legal matters described in Annex C set forth on Exhibit E hereto.
(bii) On the Closing Date, the The Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as an opinion of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, M▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for to the Initial PurchasersPurchaser, dated the Closing Date, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, .
(iii) The Initial Purchaser shall have received from G▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On independent registered public accountants for the Company, on each of the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer Purchaser and counsel to the comfort letter Initial Purchaser, letters dated the date hereof and reaffirm the Closing Date confirming that is an independent registered public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or update as of a more recent date, the information stated incorporated by reference in the comfort letter dated Disclosure Package and the date hereof and similarly address the audited and any unaudited financial information in the Final Offering Memorandum.
(div) The Initial Purchaser shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Issuers and the Guarantors 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 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 performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such 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.
(evi) The None of the issuance and sale of the Notes hereunder Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall not be enjoined (temporarily or permanently) on and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Closing DateCompany or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(fvii) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchaser, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development has occurredrelating to or involving the Company or any subsidiary, and no information has become known, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, individually or in the aggregateopinion of the Company and its counsel or the Initial Purchaser and its counsel, has requires the making of any addition to or would be reasonably likely change in the Disclosure Package and the Offering Memorandum in order to have state a Material Adverse Effect; andmaterial fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(iiiviii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Notes hereunder has Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(hix) On Each of the Closing Date, Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers Purchaser and shall have received been executed and delivered by all the Registration Rights Agreement executed by respective parties thereto (other than the Issuers Initial Purchaser) and the Guarantors and such agreement shall be in full force and effect. On , and there shall have been no material amendments, alterations, modifications or before waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At the Closing Date, the Initial Purchasers Company and counsel for the Trustee shall have entered into the Indenture and the Initial Purchasers Purchaser shall have received such further documentscounterparts, opinionsconformed as executed, certificates, letters thereof and schedules or instruments relating to the business, corporate, legal Notes shall have been duly executed and financial affairs delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Issuers and the Guarantors as they shall have heretofore reasonably requested from the IssuersNotes will be duly listed, subject to notice of issuance, for quotation on Nasdaq. All such documents, opinions, certificates, letters, schedules schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for to the Initial PurchasersPurchaser. The Issuers Company shall furnish to the Initial Purchasers Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules schedules, documents and instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Notes Bonds shall be subject to the satisfaction or waiver, in accuracy on the sole discretion date hereof and on the Closing Date of the Representative, representations and warranties made herein on the part of the following conditions Company and of any certificates furnished by the Company on or prior the Closing Date and to the Closing Datefollowing conditions:
(a) On At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have received the opinionfrom ▇▇▇▇ ▇. ▇▇▇▇, dated as Esq., Senior Counsel-Corporate and Securities of the Closing Date Entergy Services, Inc., and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.& Priest LLP opinions, counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.
(b) On dated the Closing Date, substantially in the Initial Purchasers shall have received the opinionforms set forth in Exhibits A and B hereto, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, respectively (it being understood that ▇▇. ▇▇▇▇ may rely on an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel L.L.P. as to matters in his opinion relating to Texas law provided that the Initial Purchasers are addressees to, or are otherwise entitled to rely on, such opinion), (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Initial Purchasers, with respect and (ii) if the Offering Memorandum shall be supplemented after being furnished to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering for use in offering the Bonds, with changes therein to reflect such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matterssupplementation.
(c) On At the date hereofClosing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel Counsel for the Initial Purchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the Closing Date.
(d) At the Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP, the Company's independent certified public accountants (the "Accountants"), a letter dated the Closing Date and addressed to the Initial Purchasers to the effect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and any 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 information statements, if any, incorporated by reference in the Pricing Disclosure Package. Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2002 to a specified date not more than five days prior to the date of such letter, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; and (C) at a specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholders' equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement.
(e) At the Closing Date, the Initial Purchasers shall have received a certificate signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the Company, to the effect that (i) the representations and warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Purchase Agreement to be performed or complied with by the Company at or prior to the Closing Date and (iii) since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in each case other than as referred to in, or contemplated by, the Offering Memorandum, as it may then be amended or supplemented.
(f) At the Closing Date, the Initial Purchasers shall have received duly executed counterparts of the Supplemental Indenture and the Registration Rights Agreement.
(g) Between the date hereof and the Closing Date, no default (or an event which, with the giving of notice or the passage of time or both, would constitute a default) under the Mortgage (as defined therein) shall have occurred.
(h) On or prior to the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated Company evidence reasonably satisfactory to the Initial Purchasers that the Bonds have received ratings of Baa3 or better from ▇▇▇▇▇'▇ Investors Service, Inc. and BBB- or better from Standard & Poor's Ratings Services.
(i) Between the date hereof and the Closing Date, neither ▇▇▇▇▇'▇ Investors Service, Inc. nor Standard & Poor's Ratings Services shall have lowered its rating of any of the Company's outstanding first mortgage bonds in any respect.
(j) Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, which, in the reasonable opinion of BNP Paribas Securities Corp. and ▇▇▇▇▇▇ Brothers Inc., as representatives of the Initial Purchasers, materially impairs the investment quality of the Bonds.
(k) All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance satisfactory to counsel Counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(dl) The representations and warranties of the Issuers and the Guarantors contained in this Agreement Company shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Issuers’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, furnish the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and with additional conformed copies of such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs documents as may be reasonably requested. If any of the Issuers conditions specified in this Section 6 shall not have been fulfilled, this Purchase Agreement may be terminated by BNP Paribas Securities Corp. and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents▇▇▇▇▇▇ Brothers Inc., opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for on behalf of the Initial Purchasers. The Issuers shall furnish , upon notice thereof to the Initial Purchasers Company. Any such conformed copies termination shall be without liability of such documentsany party to any other party, opinions, certificates, letters, schedules except as otherwise provided in paragraph (d) of Section 5 and instruments in such quantities as the Initial Purchasers shall reasonably requestSection 9.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinionfollowing opinions, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to counsel for the Initial Purchasers:
(i) The opinion and negative assurance letter of ▇▇▇▇▇▇▇, Swaine and ▇▇▇▇▇ LLP, New York counsel for the Company;
(ii) The opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.▇, P.A., North Carolina counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C hereto.Company; and
(biii) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as The opinion of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPSidley Austin llp, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinionopinions, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. and ▇▇▇▇▇▇ LLP shall have received and ▇▇▇▇▇▇ llp may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such mattersrequest.
(cb) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Accountants, with respect to each of the Company and TXI, a comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers Purchasers, with respect to the audited and any unaudited (and, in the case of the Company, pro forma) financial information in the Pricing Disclosure PackagePackage or the Final Memorandum. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants Accountants, with respect to each of the Company and TXI, a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the applicable comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the such comfort letter dated the date hereof and similarly address the audited and any unaudited (and, in the case of the Company, pro forma) financial information in the Pricing Disclosure Package and the Final Memorandum.
(dc) The representations and warranties of the Issuers and the Guarantors 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 statements of the Issuers’ Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (for avoidance of doubt, exclusive of any amendment or supplement thereto after the date hereofthereto), subsequent to the date of the most recent financial statements in such the Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(ed) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(fe) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (for avoidance of doubt, exclusive of any amendment or supplement thereto after the date hereofthereto), none of the Issuers nor Company or any of the Material Subsidiaries its subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, 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.
(gf) The Initial Purchasers shall have received certificatesa certificate of the Company, dated the Closing Date, signed on behalf of the Company by its President or any Senior Vice President and the Chief Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (for avoidance of doubt, exclusive of any amendment or supplement thereto after the date hereofthereto), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(hg) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors Company and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and letters, schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers and the Guarantors Company as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinionopinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of (i) K▇▇▇▇▇▇▇ & ▇▇E▇▇▇▇ L.L.P.LLP, counsel for the IssuersCompany, in form and substance satisfactory to counsel for the Initial Purchasers, a form of which is attached as Exhibit B and (ii) W▇▇▇▇▇ ▇▇▇▇▇▇ P▇▇▇▇▇▇▇▇ ▇▇▇▇ and Door LLP, counsel for the Company, in form and substance satisfactory to counsel for the matters described in Annex C heretoInitial Purchasers.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of C▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇R▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, C▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇R▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) 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 statements of the Issuers’ Company’s and the 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 Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 Representative shall have received certificatesa certificate of the Company and each Guarantor, dated the Closing Date, signed on behalf of the Company or such Guarantor by its (i) Chairman of the Chief Executive Officer Board, President or any Senior Vice President or executive officer performing similar functions with respect to such Guarantor and (ii) the Chief Financial Officer of each of the Issuersor executive officer performing similar functions with respect to such Guarantor, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors Company or such Guarantor contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have Company or such Guarantor has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(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 knownknown to the Company or such Guarantor, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement and the Indenture executed by the Issuers Company, the Guarantors and the Guarantors Trustee, and such agreement shall be in full force and effect. .
(i) On or before the Closing Date, the Company shall have entered into the Amendment.
(j) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Representative and counsel for the Initial Purchasers. The Issuers Company and the Guarantors shall furnish to the Initial Purchasers Representative such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers Representative shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Notes Bonds shall be subject to the satisfaction or waiver, in accuracy on the sole discretion date hereof and on the Closing Date of the Representative, representations and warranties made herein on the part of the following conditions Company and of any certificates furnished by the Company on or prior the Closing Date and to the Closing Datefollowing conditions:
(a) On At the Closing Date, the Initial Purchasers there shall have received been issued and there shall be in full force and effect, to the opinion, dated as extent legally required for the issuance and sale of the Closing Date Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and addressed to sale of the Initial PurchasersBonds on the terms set forth in, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.or contemplated by, counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers, as to the matters described in Annex C heretothis Purchase Agreement.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On At the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter Mark G. Otts, Esq., Senior Counsel- Corporat▇ ▇▇▇ ▇▇▇▇rities of Entergy Services, Inc., and Thelen Reid & Priest LLP opinions, dated the Closing DateClosin▇ ▇▇▇▇, substantially in form the forms set forth in Exhibits A and substance satisfactory B hereto, respectively (it being understood that Mr. Otts may rely on an opinion of Orgain, Be▇▇ & ▇▇▇ker, L.L.P. as to counsel matters ▇▇ ▇▇▇ o▇▇▇▇on ▇▇▇▇▇▇ng to Texas law provided that the Initial Purchasers are addressees to, or are otherwise entitled to rely on, such opinion), (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Initial Purchasers, which and (ii) if the Offering Memorandum shall refer be supplemented after being furnished to the comfort letter dated Initial Purchasers for use in offering the date hereof and reaffirm or update as of a more recent dateBonds, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandumwith changes therein to reflect such supplementation.
(dc) 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 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 performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor any of the Material 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, dated the Closing Date, signed by the Chief Executive Officer or Chief Financial Officer of each of the Issuers, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On At the Closing Date, the Initial Purchasers shall have received from Counsel for the Registration Rights Agreement executed by Initial Purchasers an opinion, dated the Issuers and Closing Date, substantially in the Guarantors and form set forth in Exhibit C hereto, with such agreement shall changes therein as may be in full force and effect. On or before necessary to reflect any supplementation of the Offering Memorandum prior to the Closing Date.
(d) At the Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP, the Company's independent certified public accountants (the "Accountants"), a letter dated the Closing Date and counsel 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. 71, 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, 2001 to a specified date not more than five days prior to the date of such letter, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; and (C) at a specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholders' equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and
(iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, with 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 such further documentsa certificate signed by the President, opinionsa Vice President, certificatesthe Treasurer or an Assistant Treasurer of the Company, letters to the effect that (i) the representations and schedules warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Purchase Agreement to be performed or instruments relating complied with by the Company at or prior to the Closing Date and (iii) since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, corporate, legal and property or financial affairs condition of the Issuers Company and there has not been any material transaction entered into by the Guarantors Company, other than transactions in the ordinary course of business, in each case other than as they shall have heretofore reasonably requested from referred to in, or contemplated by, the Issuers. All such documentsOffering Memorandum, opinions, certificates, letters, schedules as it may then be amended or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably requestsupplemented.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall shall, in its sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On The Initial Purchaser shall have received an opinion in form and substance satisfactory to the Initial Purchaser, dated the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the IssuersCompany, substantially in the form of Exhibit A hereto. In rendering such opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass on such matters. In addition, in form rendering their opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ may state that their opinion is limited to matters of Illinois, New York, Delaware corporate and substance satisfactory federal law. Such opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall be rendered to counsel for the Initial Purchasers, as to Purchaser at the matters described in Annex C heretorequest of the Company and shall so state therein.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial PurchasersPurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the The Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof, in form hereof and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final MemorandumPurchaser.
(d) The representations and warranties of the Issuers and the Guarantors Company contained in this Agreement shall be true and correct on and as of the Time of Execution 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’ Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent Other than as disclosed in the Final Memorandum, subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 Purchaser shall have received certificatesa certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chairman of the Board, President or any Executive Vice President and the Chief Executive Officer or Chief Financial Officer of each of the IssuersOfficer, to the effect that:
(i) the The representations and warranties of each of the Issuers and the Guarantors Company contained in this Agreement are true and correct on and as of the Time of Execution date hereof and on and as of the Closing Date, and each of the Issuers and the Guarantors have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at 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 The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) The New Credit Facility (as defined in the Offering Memorandum) shall have been executed and delivered by the parties thereto, shall be in full force and effect and in form and substance satisfactory to the Initial Purchaser.
(i) On the Closing Date, the Initial Purchasers Purchaser shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors Company and such agreement shall be in full force and effecteffect at all times from and after the Closing Date. On or before the Closing Date, the Initial Purchasers Purchaser and counsel for the Initial Purchasers Purchaser shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser. The Issuers Company shall furnish to the Initial Purchasers Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall Securities shall, in their sole discretion, be subject to the satisfaction or waiver, in the sole discretion of the Representative, waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinionopinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.LLP, special counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, and substantially as to the matters described set forth in Annex C B-1 and B-2, respectively, hereto. In rendering such opinion, ▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received the opinionopinion and negative assurance letter, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(d) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects; the statements of the IssuersCompany’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct correct, in all material respects, on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect.
(e) The sale of the Notes 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Issuers nor Company or any of the Material 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 expected to have a Material Adverse Effect.
(g) The Initial Purchasers Representative shall have received certificatesa certificate from the Company, dated the Closing Date, signed on behalf of the Company by the its (i) Chief Executive Officer Officer, President or any Senior Vice President or executive officer and (ii) Chief Financial Officer of each of the IssuersOfficer, Controller, Treasurer or principal financial or accounting officer to the effect thatthat to such officers’ knowledge after due inquiry:
(i) the representations and warranties of each of the Issuers Company and the Guarantors contained in this Agreement are true and correct correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects, and each of the Issuers Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date;
(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 knownknown to the Company or any Guarantor, that, individually or in the aggregate, has or would be reasonably likely expected to have a Material Adverse Effect; and
(iii) the sale of the Notes Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers Company and the Guarantors Guarantors, and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Company, the Guarantors and the Trustee, and such agreement shall be in full force and effect at all times from and after the Closing Date.
(j) The Notes shall be eligible for clearance and settlement through The Depository Trust Company.
(k) On the Closing Date, the Initial Purchasers shall have received an amendment to the Company’s revolving credit and security agreement, as amended, to allow for the offering of the Notes and the incurrence of debt under the Indenture executed by the Company, the Guarantors and the lenders party thereto. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers Company and the Guarantors Subsidiaries as they shall have heretofore reasonably requested from the IssuersCompany. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Representative and counsel for the Initial Purchasers. The Issuers Company and the Guarantors shall furnish to the Initial Purchasers Representative such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers Representative shall reasonably request.
Appears in 1 contract
Sources: Purchase Agreement (Great Lakes Dredge & Dock CORP)