Conditions of the Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase and pay for the Securities are subject to the continued accuracy, as of the Closing Time, of the representations and warranties of the Issuers herein contained, to the accuracy of the statements of the Issuers and officers of the Issuers made in any certificate pursuant to the provisions hereof, to the performance by each of the Issuers of its obligations hereunder, and to the following further conditions: (a) At the Closing Time, the Initial Purchasers shall have received the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, United States counsel to the Issuers, dated as of the Closing Time, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, to the effect that: (1) no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body in the United States of America or the State of New York is required for the execution and delivery by the Company and the LLC, as applicable, of the Purchase Agreement, the Equity Registration Rights Agreement, the Notes Registration Rights Agreement, the Agency Agreement, the Escrow Agreement, the Unit Agreement, the Company-LLC Subscription Agreement or the Indenture or for the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement, the issuance and delivery of the Exchange Notes or the Private Exchange Notes, if any, in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, or the consummation by the Company and the LLC, as applicable, of any of the transactions contemplated in such instruments and agreements, or the issuance, sale and delivery of the Holding Shares by the LLC pursuant to the Purchase Agreement (except for authorizations required under the securities or Blue Sky laws of certain jurisdictions, as to which we express no opinion) nor will such issuance, sale and delivery of the Securities to the Initial Purchasers or the execution, delivery and performance of such instruments and agreements by the Company and the LLC, as applicable, conflict with, or result in a violation of any of the terms or provisions of, any existing applicable United States Federal or New York State judgment, order or decree which is known to such counsel or any law, rule or regulation, in any such case, of any government, governmental instrumentality or court located in the United States having jurisdiction over the Company or any of its properties or assets, except that (a) the transactions contemplated by the Notes Registration Rights Agreement are subject, to the extent set forth therein, to the registration and other requirements of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and (b) the transactions contemplated by the Equity Registration Rights Agreement are subject, to the extent set forth therein, to the registration requirements of the Act; (2) to our knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company or the LLC is a party, or to which the property of the Company or the LLC is subject, before or brought by any court or governmental agency or body in the Federal courts of the United States or in any State court in the State of New York, which might reasonably be expected to have or result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation or performance by the Company or the LLC of its obligations under any of the Operative Documents; (3) the execution, delivery and performance of the Operative Documents, the issuance by the Company of the Notes, the issuance by the LLC of the Holding Shares and the consummation of the transactions contemplated in the Operative Documents and compliance by the Company and the LLC with their respective obligations under the Operative Documents will not, whether with or without the giving of notice or lapse of time or both, (a) conflict with or constitute a breach of, or a default or otherwise cause or permit any holder of indebtedness of the Company to have a right to require the repurchase, redemption or repayment of any of such indebtedness of the Company or the LLC under or (b) result in the creation or imposition of any lien (other than liens contemplated by the Escrow Agreement), charge or encumbrance upon any property or assets of the Company or the LLC pursuant to any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to us, to which the Company or the LLC is a party or by which either of them may be bound, or to which any of the property or assets of the Company or the LLC is subject, or (c) result in any violation of the provisions of the LLC Agreement, or any applicable New York or Federal law, statute, rule, regulation, judgment, order, writ or decree, known to us, of any government, government instrumentality or court having jurisdiction over the Company or the LLC or any of their respective properties, assets or operations except in the case of (a), (b), or (c) above, such as would not, either singly or in the aggregate, have a Material Adverse Effect; (4) the Notes are in the form contemplated by the Indenture and assuming that (a) the Company has been duly organized and is validly existing and in good standing under the laws of the Federative Republic of Brazil, (b) the Company has all requisite corporate power and authority to issue, sell and deliver the Notes and the issuance, sale and delivery of the Notes has been duly authorized by all requisite corporate action by the Company, (c) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action of the Company, (d) the Company has all requisite corporate power and authority to execute and deliver the Purchase Agree- ment, the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite corporate action by the Company, (e) the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement have been duly executed and delivered by the Company, (f) the LLC has all requisite limited liability power and authority to execute and deliver the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite limited liability company action by the LLC, (g) the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement have been duly executed and delivered by the LLC, (I) when the Notes are authenticated by the Trustee in accordance with the provisions of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and delivered and paid for in accordance with the terms of this Agreement, registered holders of the Notes will be entitled to the benefits of the Indenture and the Indenture will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, (II) when the Exchange Notes and the Private Exchange Notes, if any, are authenticated and delivered in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, registered holders of the Exchange Notes and Private Exchange Notes will be entitled to the benefits of the Indenture and will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, and (III) each of the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, and (IV) each of the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement constitutes a valid and binding obligation of the LLC, enforceable against the LLC in accordance with its terms, except, in each case, (x) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the rights and remedies of creditors generally and (y) such counsel need express no opinion concerning the enforceability of, or the enforceability under law under certain circumstances of, the indemnification provisions of Section 4 of the Notes Registration Rights Agreement or Section 5 of the Equity Registration Rights Agreement with respect to a liability where such indemnification is contrary to public policy; (5) assuming compliance by the Escrow Agent with the terms of the Escrow Agreement, the Escrow Agreement creates a valid perfected security interest in favor of the Trustee in all right, title and interest of the Company in and to the Escrow Account and the Collateral; (6) the statements in the Offering Memorandum under the headings "Summary -- The Offering," "Description of the Units," "Description of the Notes," "Exchange Offer; Notes Registration Rights" and "Equity Registration and Other Rights," insofar as such statements purport to summarize certain provisions of the Units, the Notes, the Exchange Notes, the Private Exchange Notes, the Indenture, the Notes Registration Rights Agreement and the Equity Registration Rights Agreement, provide a fair summary of such provisions of such agreements and instruments; (7) assuming the Securities are issued and sold under the circumstances contemplated by this Agreement and the representations and warranties of the Issuers and the Initial Purchasers set forth herein are true and correct, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated by the Purchase Agreement and the Offering Memorandum to register the Securities under the 1933 Act or to qualify the Indenture under the Trust Indenture Act; (8) assuming the Company invests the net proceeds of the Offering as described under "Use of Proceeds" in the Final Offering Memorandum, neither the Company nor the LLC is an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940 (the "Investment Company Act") nor is the Company or the LLC otherwise subject to regulation or registration under the Investment Company Act. In forming the foregoing opinion, we are not relying on the availability of any exemption under Section 3(c)(1) or 3(c)(7) of the Investment Company Act; (9) the statements in the Offering Memorandum under the caption "Tax Considerations -- United States" fairly summarize the material United States Federal tax consequences of acquiring, owning and disposing of the Units, the Notes, the Exchange Notes and the Holding Shares; (10) the LLC will be treated for federal income tax purposes as a partnership and, based on the manner in which it intends to limit its business activities and monitor its "qualifying income" for purposes of Section 7704(c) of the Internal Revenue Code of 1986, as amended (the "Code"), it will not be classified as a publicly traded partnership that is treated as a corporation under section 7704(a) of the Code. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclauses (7) and (10) above), on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon opinions of officers and other representatives of the Issuers), on the basis of the foregoing nothing has come to its attention to cause it to believe that the Offering Memorandum at the date thereof or as of the Closing Time, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been requested to and does not make any comment with respect to (i) the financial statements, and the notes thereto and related schedules, (ii) other financial or statistical data found in or derivable from the financial, accounting or internal records of the Issuers or (iii) any forward-looking or projected financial or statistical data relating to the Issuers, in each case, included in the Offering Memorandum). In rendering such opinion, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal laws of the United States and the laws of the State of New York and (B) may rely as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Issuers and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). References to the Offering Memorandum in this Section (a) include any supplement thereto prior to the Closing Time. (b) At the Closing Time, the Initial Purchasers shall have received the opinion of Xavier, Bernardes, Braganca, Brazilian counsel to the Issuers, dated as of the Closing Time, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchaser, to the effect that: (1) the Company has been duly organized and is a validly existing sociedade anonima in good standing under the laws of the Federative Republic of Brazil, with full corporate power and authority to own, lease and operate its assets and properties and conduct its business currently conducted and as described in the Offering Memorandum; (2) the authorized, issued and outstanding capital stock of the Company is as set forth in the Offering Memorandum under the subheading "Actual" under the caption "Capitalization" (except that 8,700 additional shares of the Company's redeemable preferred stock were subsequently issued); the Company does not have any subsidiaries; (a) the Company has the requisite corporate power and authority to issue, sell and deliver the Notes pursuant to the Purchase Agreement and the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement have been duly authorized by all requisite corporate action by the Company; (b) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action by the Company; (c) the Company has the requisite corporate power and authority to issue, sell and deliver the Common Stock pursuant to the Company-LLC Subscription Agreement and th
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase and pay for the Securities hereunder are subject to the continued accuracy, as of the Closing Time, accuracy of the representations and warranties on the part of the Issuers herein contained, to Company on the accuracy of the statements of the Issuers and officers of the Issuers made in any certificate pursuant to the provisions date hereof, to at the time of purchase, as if made on and as of such date, the performance by each of the Issuers Company of its obligations hereunder, hereunder and to the following further conditionsadditional conditions precedent:
(a) At No event or condition of a type described in Section 3(x) hereof shall have occurred or shall exist, which event or condition is not described in the Closing TimeTime of Sale Information (excluding any amendment or supplement thereto) and the Offering Memorandum (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities at the time of purchase on the terms and in the manner contemplated by this Agreement, the Initial Purchasers Time of Sale Information and the Offering Memorandum.
(b) The Company shall have received furnish to you at the time of purchase an opinion and 10b-5 statement of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, United States counsel to the Issuers, dated as of the Closing Time, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Company, addressed to the Initial Purchasers, to and dated the effect that:
(1) no consent, approval, authorization, order, registration or qualification time of or purchase with any court or governmental agency or body in the United States of America or the State of New York is required executed copies for the execution and delivery by the Company and the LLC, as applicable, of the Purchase Agreement, the Equity Registration Rights Agreement, the Notes Registration Rights Agreement, the Agency Agreement, the Escrow Agreement, the Unit Agreement, the Company-LLC Subscription Agreement or the Indenture or for the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement, the issuance and delivery of the Exchange Notes or the Private Exchange Notes, if any, in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, or the consummation by the Company and the LLC, as applicable, of any of the transactions contemplated in such instruments and agreements, or the issuance, sale and delivery of the Holding Shares by the LLC pursuant to the Purchase Agreement (except for authorizations required under the securities or Blue Sky laws of certain jurisdictions, as to which we express no opinion) nor will such issuance, sale and delivery of the Securities to the each Initial Purchasers or the execution, delivery and performance of such instruments and agreements by the Company and the LLC, as applicable, conflict with, or result in a violation of any of the terms or provisions of, any existing applicable United States Federal or New York State judgment, order or decree which is known to such counsel or any law, rule or regulation, in any such case, of any government, governmental instrumentality or court located in the United States having jurisdiction over the Company or any of its properties or assets, except that (a) the transactions contemplated by the Notes Registration Rights Agreement are subject, to the extent set forth therein, to the registration and other requirements of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and (b) the transactions contemplated by the Equity Registration Rights Agreement are subject, to the extent set forth therein, to the registration requirements of the Act;
(2) to our knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company or the LLC is a party, or to which the property of the Company or the LLC is subject, before or brought by any court or governmental agency or body in the Federal courts of the United States or in any State court in the State of New York, which might reasonably be expected to have or result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation or performance by the Company or the LLC of its obligations under any of the Operative Documents;
(3) the execution, delivery and performance of the Operative Documents, the issuance by the Company of the Notes, the issuance by the LLC of the Holding Shares and the consummation of the transactions contemplated in the Operative Documents and compliance by the Company and the LLC with their respective obligations under the Operative Documents will not, whether with or without the giving of notice or lapse of time or both, (a) conflict with or constitute a breach of, or a default or otherwise cause or permit any holder of indebtedness of the Company to have a right to require the repurchase, redemption or repayment of any of such indebtedness of the Company or the LLC under or (b) result in the creation or imposition of any lien (other than liens contemplated by the Escrow Agreement), charge or encumbrance upon any property or assets of the Company or the LLC pursuant to any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to us, to which the Company or the LLC is a party or by which either of them may be bound, or to which any of the property or assets of the Company or the LLC is subject, or (c) result in any violation of the provisions of the LLC Agreement, or any applicable New York or Federal law, statute, rule, regulation, judgment, order, writ or decree, known to us, of any government, government instrumentality or court having jurisdiction over the Company or the LLC or any of their respective properties, assets or operations except in the case of (a), (b), or (c) above, such as would not, either singly or in the aggregate, have a Material Adverse Effect;
(4) the Notes are in the form contemplated by the Indenture and assuming that (a) the Company has been duly organized and is validly existing and in good standing under the laws of the Federative Republic of Brazil, (b) the Company has all requisite corporate power and authority to issue, sell and deliver the Notes and the issuance, sale and delivery of the Notes has been duly authorized by all requisite corporate action by the Company, (c) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action of the Company, (d) the Company has all requisite corporate power and authority to execute and deliver the Purchase Agree- ment, the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite corporate action by the Company, (e) the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement have been duly executed and delivered by the Company, (f) the LLC has all requisite limited liability power and authority to execute and deliver the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite limited liability company action by the LLC, (g) the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement have been duly executed and delivered by the LLC, (I) when the Notes are authenticated by the Trustee in accordance with the provisions of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and delivered and paid for in accordance with the terms of this Agreement, registered holders of the Notes will be entitled to the benefits of the Indenture and the Indenture will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, (II) when the Exchange Notes and the Private Exchange Notes, if any, are authenticated and delivered in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, registered holders of the Exchange Notes and Private Exchange Notes will be entitled to the benefits of the Indenture and will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, and (III) each of the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, and (IV) each of the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement constitutes a valid and binding obligation of the LLC, enforceable against the LLC in accordance with its terms, except, in each case, (x) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the rights and remedies of creditors generally and (y) such counsel need express no opinion concerning the enforceability of, or the enforceability under law under certain circumstances of, the indemnification provisions of Section 4 of the Notes Registration Rights Agreement or Section 5 of the Equity Registration Rights Agreement with respect to a liability where such indemnification is contrary to public policy;
(5) assuming compliance by the Escrow Agent with the terms of the Escrow Agreement, the Escrow Agreement creates a valid perfected security interest in favor of the Trustee in all right, title and interest of the Company in and to the Escrow Account and the Collateral;
(6) the statements in the Offering Memorandum under the headings "Summary -- The Offering," "Description of the Units," "Description of the Notes," "Exchange Offer; Notes Registration Rights" and "Equity Registration and Other Rights," insofar as such statements purport to summarize certain provisions of the Units, the Notes, the Exchange Notes, the Private Exchange Notes, the Indenture, the Notes Registration Rights Agreement and the Equity Registration Rights Agreement, provide a fair summary of such provisions of such agreements and instruments;
(7) assuming the Securities are issued and sold under the circumstances contemplated by this Agreement and the representations and warranties of the Issuers and the Initial Purchasers set forth herein are true and correct, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated by the Purchase Agreement and the Offering Memorandum to register the Securities under the 1933 Act or to qualify the Indenture under the Trust Indenture Act;
(8) assuming the Company invests the net proceeds of the Offering as described under "Use of Proceeds" in the Final Offering Memorandum, neither the Company nor the LLC is an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940 (the "Investment Company Act") nor is the Company or the LLC otherwise subject to regulation or registration under the Investment Company Act. In forming the foregoing opinion, we are not relying on the availability of any exemption under Section 3(c)(1) or 3(c)(7) of the Investment Company Act;
(9) the statements in the Offering Memorandum under the caption "Tax Considerations -- United States" fairly summarize the material United States Federal tax consequences of acquiring, owning and disposing of the Units, the Notes, the Exchange Notes and the Holding Shares;
(10) the LLC will be treated for federal income tax purposes as a partnership and, based on the manner in which it intends to limit its business activities and monitor its "qualifying income" for purposes of Section 7704(c) of the Internal Revenue Code of 1986, as amended (the "Code"), it will not be classified as a publicly traded partnership that is treated as a corporation under section 7704(a) of the Code. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclauses (7) and (10) above), on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon opinions of officers and other representatives of the Issuers), on the basis of the foregoing nothing has come to its attention to cause it to believe that the Offering Memorandum at the date thereof or as of the Closing Time, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been requested to and does not make any comment with respect to (i) the financial statements, and the notes thereto and related schedules, (ii) other financial or statistical data found in or derivable from the financial, accounting or internal records of the Issuers or (iii) any forward-looking or projected financial or statistical data relating to the Issuers, in each case, included in the Offering Memorandum). In rendering such opinion, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal laws of the United States and the laws of the State of New York and (B) may rely as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Issuers and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). References to the Offering Memorandum in this Section (a) include any supplement thereto prior to the Closing Time.
(b) At the Closing Time, the Initial Purchasers shall have received the opinion of Xavier, Bernardes, Braganca, Brazilian counsel to the Issuers, dated as of the Closing Time, in form and substance satisfactory to the Initial Purchasers Representative.
(c) You shall have received at the time of purchase the favorable opinion and 10b-5 statement of ▇▇▇▇▇▇ LLP, counsel for the Initial PurchaserPurchasers, dated the time of purchase in form and substance satisfactory to the effect that:Representative.
(1d) You shall have received at the Company has been duly organized time of purchase an opinion with respect to intellectual property matters of Banner & Witcoff, Ltd., counsel for the Company, dated the time of purchase in form and is a validly existing sociedade anonima substance satisfactory to the Representative.
(e) You shall have received at the time of purchase an opinion with respect to intellectual property matters of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Patent Attorney, counsel for the Company, dated the time of purchase in good standing under form and substance satisfactory to the laws Representative.
(f) You shall have received from Ernst & Young LLP and EisnerAmper LLP letters dated, respectively, the date of this Agreement, the Federative Republic time of Brazilpurchase and addressed to the Initial Purchaser in the forms satisfactory to the Representative, with full corporate power which letters shall cover, without limitation, the various financial disclosures contained in the Time of Sale Information and authority to own, lease and operate its assets and properties and conduct its business currently conducted and as described in the Offering Memorandum;.
(2g) The Company will, at the authorizedtime of purchase, issued deliver to you a certificate of its Chief Executive Officer and outstanding capital stock its Chief Financial Officer, dated the time of purchase in the form attached as Exhibit B hereto.
(h) The Company will, at the time of purchase, deliver to you a certificate of its Chief Financial Officer, dated the time of purchase in the form attached as Exhibit C hereto.
(i) You shall have received copies, duly executed by the Company and the other party or parties thereto, of the Indenture.
(j) You shall have received each of the signed Lock-Up Agreements referred to in Section 3(y) hereof, and each such Lock-Up Agreement shall be in full force and effect at the time of purchase.
(k) You shall have received on and as of the time of purchase satisfactory evidence of the good standing of the Company is and its subsidiaries listed on Schedule D hereto in their respective jurisdictions of organization and their good standing as set forth foreign entities in such other jurisdictions as you may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(l) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, at the time of purchase, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, at the time of purchase, prevent the issuance or sale of the Securities.
(m) The Securities shall have been made eligible for clearance and settlement through DTC.
(n) The Company shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Preliminary Offering Memorandum, other Time of Sale Information, any Issuer Written Communication and the Offering Memorandum as of the time of purchase as you may reasonably request.
(o) There shall exist no event or condition which would constitute a default or an event of default under the subheading "Actual" under Securities or the caption "Capitalization" (except that 8,700 additional shares of the Company's redeemable preferred stock were subsequently issued); the Company does not have any subsidiaries;
(a) the Company has the requisite corporate power and authority to issue, sell and deliver the Notes pursuant to the Purchase Agreement and the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement have been duly authorized by all requisite corporate action by the Company; (b) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action by the Company; (c) the Company has the requisite corporate power and authority to issue, sell and deliver the Common Stock pursuant to the Company-LLC Subscription Agreement and thIndenture.
Appears in 1 contract
Sources: Purchase Agreement (Tetralogic Pharmaceuticals Corp)
Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities hereunder are subject to the continued accuracy, as of when made and on the Closing TimeDate, of the representations and warranties of the Issuers herein contained, to Company and the accuracy of the statements of the Issuers and officers of the Issuers made in any certificate pursuant to the provisions hereofGuarantors contained herein, to the performance by each the Company and the Guarantors of the Issuers of its their respective obligations hereunder, and to each of the following further additional terms and conditions:
(a) At No Initial Purchaser shall have discovered and disclosed to the Company prior to or on the Closing TimeDate that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, the Initial Purchasers shall have received in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, United States counsel to the Issuers, dated as of the Closing Time, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, to the effect that:
(1) no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body in the United States of America or the State of New York is required for the execution and delivery by the Company and the LLC, as applicable, of the Purchase Agreement, the Equity Registration Rights Agreement, the Notes Registration Rights Agreement, the Agency Agreement, the Escrow Agreement, the Unit Agreement, the Company-LLC Subscription Agreement or the Indenture or for the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement, the issuance and delivery of the Exchange Notes or the Private Exchange Notes, if any, in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, or the consummation by the Company and the LLC, as applicable, of any of the transactions contemplated in such instruments and agreements, or the issuance, sale and delivery of the Holding Shares by the LLC pursuant to the Purchase Agreement (except for authorizations required under the securities or Blue Sky laws of certain jurisdictions, as to which we express no opinion) nor will such issuance, sale and delivery of the Securities to the Initial Purchasers or the execution, delivery and performance of such instruments and agreements by the Company and the LLC, as applicable, conflict with, or result in a violation of any of the terms or provisions of, any existing applicable United States Federal or New York State judgment, order or decree which is known to such counsel or any law, rule or regulation, in any such case, of any government, governmental instrumentality or court located in the United States having jurisdiction over the Company or any of its properties or assets, except that (a) the transactions contemplated by the Notes Registration Rights Agreement are subject, to the extent set forth therein, to the registration and other requirements of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and (b) the transactions contemplated by the Equity Registration Rights Agreement are subject, to the extent set forth therein, to the registration requirements of the Act;
(2) to our knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company or the LLC is a party, or to which the property of the Company or the LLC is subject, before or brought by any court or governmental agency or body in the Federal courts of the United States or in any State court in the State of New York, which might reasonably be expected to have or result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation or performance by the Company or the LLC of its obligations under any of the Operative Documents;
(3) the execution, delivery and performance of the Operative Documents, the issuance by the Company of the Notes, the issuance by the LLC of the Holding Shares and the consummation of the transactions contemplated in the Operative Documents and compliance by the Company and the LLC with their respective obligations under the Operative Documents will not, whether with or without the giving of notice or lapse of time or both, (a) conflict with or constitute a breach of, or a default or otherwise cause or permit any holder of indebtedness of the Company to have a right to require the repurchase, redemption or repayment of any of such indebtedness of the Company or the LLC under or (b) result in the creation or imposition of any lien (other than liens contemplated by the Escrow Agreement), charge or encumbrance upon any property or assets of the Company or the LLC pursuant to any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to us, to which the Company or the LLC is a party or by which either of them may be bound, or to which any of the property or assets of the Company or the LLC is subject, or (c) result in any violation of the provisions of the LLC Agreement, or any applicable New York or Federal law, statute, rule, regulation, judgment, order, writ or decree, known to us, of any government, government instrumentality or court having jurisdiction over the Company or the LLC or any of their respective properties, assets or operations except in the case of (a), (b), or (c) above, such as would not, either singly or in the aggregate, have a Material Adverse Effect;
(4) the Notes are in the form contemplated by the Indenture and assuming that (a) the Company has been duly organized and is validly existing and in good standing under the laws of the Federative Republic of Brazil, (b) the Company has all requisite corporate power and authority to issue, sell and deliver the Notes and the issuance, sale and delivery of the Notes has been duly authorized by all requisite corporate action by the Company, (c) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action of the Company, (d) the Company has all requisite corporate power and authority to execute and deliver the Purchase Agree- ment, the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite corporate action by the Company, (e) the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement have been duly executed and delivered by the Company, (f) the LLC has all requisite limited liability power and authority to execute and deliver the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite limited liability company action by the LLC, (g) the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement have been duly executed and delivered by the LLC, (I) when the Notes are authenticated by the Trustee in accordance with the provisions of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and delivered and paid for in accordance with the terms of this Agreement, registered holders of the Notes will be entitled to the benefits of the Indenture and the Indenture will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, (II) when the Exchange Notes and the Private Exchange Notes, if any, are authenticated and delivered in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, registered holders of the Exchange Notes and Private Exchange Notes will be entitled to the benefits of the Indenture and will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, and (III) each of the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, and (IV) each of the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement constitutes a valid and binding obligation of the LLC, enforceable against the LLC in accordance with its terms, except, in each case, (x) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the rights and remedies of creditors generally and (y) such counsel need express no opinion concerning the enforceability of, or the enforceability under law under certain circumstances of, the indemnification provisions of Section 4 of the Notes Registration Rights Agreement or Section 5 of the Equity Registration Rights Agreement with respect to a liability where such indemnification is contrary to public policy;
(5) assuming compliance by the Escrow Agent with the terms of the Escrow Agreement, the Escrow Agreement creates a valid perfected security interest in favor of the Trustee in all right, title and interest of the Company in and to the Escrow Account and the Collateral;
(6) the statements in the Offering Memorandum under the headings "Summary -- The Offering," "Description of the Units," "Description of the Notes," "Exchange Offer; Notes Registration Rights" and "Equity Registration and Other Rights," insofar as such statements purport to summarize certain provisions of the Units, the Notes, the Exchange Notes, the Private Exchange Notes, the Indenture, the Notes Registration Rights Agreement and the Equity Registration Rights Agreement, provide a fair summary of such provisions of such agreements and instruments;
(7) assuming the Securities are issued and sold under the circumstances contemplated by this Agreement and the representations and warranties of the Issuers and the Initial Purchasers set forth herein are true and correct, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated by the Purchase Agreement and the Offering Memorandum to register the Securities under the 1933 Act or to qualify the Indenture under the Trust Indenture Act;
(8) assuming the Company invests the net proceeds of the Offering as described under "Use of Proceeds" in the Final Offering Memorandum, neither the Company nor the LLC is an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940 (the "Investment Company Act") nor is the Company or the LLC otherwise subject to regulation or registration under the Investment Company Act. In forming the foregoing opinion, we are not relying on the availability of any exemption under Section 3(c)(1) or 3(c)(7) of the Investment Company Act;
(9) the statements in the Offering Memorandum under the caption "Tax Considerations -- United States" fairly summarize the material United States Federal tax consequences of acquiring, owning and disposing of the Units, the Notes, the Exchange Notes and the Holding Shares;
(10) the LLC will be treated for federal income tax purposes as a partnership and, based on the manner in which it intends to limit its business activities and monitor its "qualifying income" for purposes of Section 7704(c) of the Internal Revenue Code of 1986, as amended (the "Code"), it will not be classified as a publicly traded partnership that is treated as a corporation under section 7704(a) of the Code. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclauses (7) and (10) above), on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon opinions of officers and other representatives of the Issuers), on the basis of the foregoing nothing has come to its attention to cause it to believe that the Offering Memorandum at the date thereof or as of the Closing Time, contained or contains an untrue statement of a material fact or omitted or omits to state a any fact which is material fact and required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been requested to and does not make any comment with respect to (i) the financial statements, and the notes thereto and related schedules, (ii) other financial or statistical data found in or derivable from the financial, accounting or internal records of the Issuers or (iii) any forward-looking or projected financial or statistical data relating to the Issuers, in each case, included in the Offering Memorandum). In rendering such opinion, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal laws of the United States and the laws of the State of New York and (B) may rely as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Issuers and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). References to the Offering Memorandum in this Section (a) include any supplement thereto prior to the Closing Timemisleading.
(b) At All corporate proceedings and other legal matters incident to the Closing Timeauthorization, form and validity of the Transaction Documents, the Securities, the Exchange Securities and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Transaction Documents, the Securities, the Exchange Securities and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers; and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP shall have furnished to the Representatives their written opinion, as counsel to the Company and the Guarantors, addressed to the Initial Purchasers shall have received the opinion of Xavier, Bernardes, Braganca, Brazilian counsel to the Issuers, and dated as of the Closing TimeDate, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial PurchaserPurchasers, to the effect that:
(1i) Each of the Company and the Guarantors has been duly incorporated and is validly existing as a corporation in good standing and each limited liability company Guarantor has been duly organized and is a validly existing sociedade anonima as a limited liability company in good standing standing, in each case under the laws of its jurisdiction of incorporation, and is duly qualified to do business and is in good standing (or equivalent status) as a foreign corporation or limited liability company in each jurisdiction identified by the Federative Republic of BrazilCompany as a jurisdiction in which the Company or the Guarantors owns or leases real property or has employees, with full except where the failure to be so qualified would not have a Material Adverse Effect, and has all corporate power and authority necessary to own, lease and operate own or hold its assets and properties and conduct its the business currently conducted and in which it is engaged;
(ii) The Company has an authorized capitalization as described set forth in the Offering Memorandum;
(2iii) The statements in the authorizedOffering Memorandum under the caption “Description of Notes”, issued and outstanding capital stock insofar as they purport to summarize the provisions of the Company is Indenture, the Registration Rights Agreement, the Securities, the Exchange Securities and the Guarantees, are accurate and complete in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act;
(iv) To the best knowledge of such counsel and other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would reasonably be expected to have a Material Adverse Effect; and, to the best knowledge of such counsel, no such proceedings are overtly threatened or contemplated by governmental authorities or threatened by others;
(v) The execution, delivery and performance of this Agreement, the Indenture, the Guarantees and the Registration Rights Agreement and the issuance of the Securities and the Exchange Securities and the consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificates or articles of incorporation or bylaws of the Company or any of the Guarantors or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or the Guarantors or any of their respective properties or assets; and, except as may be required by the securities or “blue sky” laws of any state of the United States in connection with the sale of the Securities, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the Indenture by the Company and the Guarantors and the issuance of the Securities and the consummation of the transactions contemplated hereby and thereby;
(vi) No registration of the Securities under the Securities Act, and no qualification of the Indenture or an indenture under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Securities in the manner contemplated by the Offering Memorandum, this Agreement and the Indenture;
(vii) The statements in the Offering Memorandum under the subheading "Actual" under the caption "Capitalization" (except that 8,700 additional shares “Certain United States Federal Income Tax Considerations,” insofar as they purport to constitute summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the Company's redeemable preferred stock were subsequently issued); the Company does not have any subsidiariesmatters described therein in all material respects;
(aviii) The Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended;
(ix) Each of the Company and the Guarantors has the requisite all necessary corporate right, power and authority to execute and deliver each of the Transaction Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Notes pursuant Securities to the Purchase Initial Purchasers;
(x) This Agreement has been duly authorized, executed and delivered by the Company and the issuanceGuarantors;
(xi) The Indenture has been duly authorized, sale executed and delivered by the Company and the Guarantors and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a legally valid and binding agreement of the Notes pursuant Company and the Guarantors enforceable against the Company and the Guarantors in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(xii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Purchase Agreement Company and the Guarantors and, assuming due authorization, execution and delivery thereof by the Initial Purchasers, constitutes a valid and legally binding agreement of the Company and the Guarantors enforceable against the Company and the Guarantors in accordance with its terms except as rights to indemnity contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(xiii) The Securities and the Exchange Securities have been duly authorized by all requisite corporate action the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial Purchasers, will constitute legally valid and binding obligations of the Company; (b) , entitled to the benefits of the Indenture and enforceable against the Company has all requisite corporate power in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and authority other similar laws relating to issue or affecting creditors’ rights generally, subject to general principles of equity and deliver to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(xiv) The Guarantees and the Exchange Notes Guarantees have been duly authorized by the Guarantors and when the Securities and the Private Exchange Notes Securities are duly endorsed in exchange accordance with terms of the Indenture and delivered to and paid for the Notes in the manner contemplated by the Notes Initial Purchasers, will constitute legally valid and binding obligations of the Guarantors, entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law); and
(xv) The execution, delivery and performance of this Agreement, the Indenture, the Guarantees and the Registration Rights Agreement and the issuance of the Securities and the Exchange Securities and the consummation of the transactions contemplated hereby and thereby do not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such issuance counsel to which the Company or any of the Guarantors is a party or by which the Company or the Guarantors are bound or to which any of the property or assets of the Company or the Guarantors are subject. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the laws of the State of Wisconsin and delivery the Wisconsin Business Corporation Law and may state that it is relying, in respect of matters of New York law, upon ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, and in respect of matters of fact, upon certificates of officers of the Company, provided that such counsel shall state that it believes that the Initial Purchasers and it are justified in relying upon such certificates. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated the Closing Date, in form and substance satisfactory to the Initial Purchasers, to the effect that during the course of preparing the Offering Memorandum, such counsel participated in conferences with officers and other representatives of the Company, the Company’s independent public accountants, the Initial Purchasers and their counsel, at which the contents of the Offering Memorandum (including the Exchange Act Reports) were discussed, and while such counsel has not independently verified and is not passing upon the accuracy, completeness or fairness of the statements made in the Offering Memorandum (including the Exchange Act Reports) except as explicitly set forth above, no facts have come to the attention of such counsel which lead it to believe that the Offering Memorandum (including the Exchange Act Reports), as of its date or as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that such counsel need express no belief as to the financial statements, financial and statistical data and supporting schedules contained in the Offering Memorandum (or in any Exchange Act Reports).
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, shall have furnished to the Representatives its written opinion, as counsel to the Initial Purchasers, addressed to the Initial Purchasers and dated the Closing Date, in form and substance satisfactory to the Initial Purchasers.
(e) The Representatives shall have received from the Accountants a letter (the “initial comfort letter”), in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to initial purchasers in connection with comparable private placements, in form and substance satisfactory to the Initial Purchasers; and with respect to the Closing Date, the Company shall have furnished to the Representatives the letter (the “bring-down letter”) of the Accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(f) The Company shall have furnished to the Representatives on the Closing Date a certificate, dated the Closing Date and delivered on behalf of the Company by its chief executive officer and its chief financial officer, in form and substance satisfactory to the Initial Purchasers, to the effect that:
(i) the representations, warranties and agreements of the Company and each of the Guarantors in Section 2 are true and correct as of the date given and as of the Closing Date; and the Company and the Guarantors have complied in all material respects with all their respective agreements contained herein to be performed prior to or on the Closing Date and the condition set forth in Section 4(l), has been duly authorized by all requisite corporate action fulfilled;
(ii) since the respective dates as of which information is given in the Offering Memorandum, other than as set forth in or contemplated by the Company; Offering Memorandum (cexclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (A) there has not occurred any change or any development that might have a Material Adverse Effect, (B) there has not been any change in the capital stock, the short-term debt, or the long-term debt of the Company or any of its subsidiaries that might have a Material Adverse Effect, (C) neither the Company nor any of its subsidiaries has incurred any material liability or obligation, direct or contingent that is material to the Company and its subsidiaries, taken as a whole and (D) a Material Loss has not occurred;
(iii) such officer has carefully examined the Offering Memorandum and, in such officer’s opinion (A) the Company has Offering Memorandum, as of its date and as of the requisite corporate power Closing Date, did not include any untrue statement of a material fact and authority did not omit to issuestate any material fact required to be stated therein or necessary to make the statements therein, sell in the light of the circumstances under which they were made, not misleading, and deliver (B) since the Common Stock pursuant to date of the Company-LLC Subscription Agreement and thOffering
Appears in 1 contract
Sources: Purchase Agreement (Neomarkers Inc)
Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities hereunder are subject to the continued accuracy, as of the Closing Time, accuracy of the representations and warranties on the part of the Issuers herein contained, to Company on the accuracy of the statements of the Issuers and officers of the Issuers made in any certificate pursuant to the provisions date hereof, to at the time of purchase and, if applicable, at the additional time of purchase, the performance by each of the Issuers Company of its obligations hereunder, hereunder and to the following further conditionsadditional conditions precedent:
(a) At The Company shall furnish to you at the Closing Timetime of purchase and, if applicable, at the additional time of purchase, an opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, addressed to the Initial Purchasers, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for the Initial Purchasers, and in form and substance satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, in the form set forth in Exhibit B hereto.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, a certificate of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ in his capacity as Senior Vice President and General Counsel of the Company in the form set forth in Exhibit C hereto.
(c) You shall have received from Ernst & Young LLP letters dated, respectively, the date of this Agreement, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Initial Purchasers (with executed copies for the Initial Purchasers) in the forms approved by UBS.
(d) You shall have received at the time of purchase and, if applicable, at the additional time of purchase, the favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, United States counsel to for the IssuersInitial Purchasers, dated the time of purchase or the additional time of purchase, as of the Closing Timecase may be, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, to the effect that:UBS.
(1e) no consent, approval, authorization, order, registration No amendment or qualification of or with any court or governmental agency or body in supplement to either the United States of America Preliminary Memorandum or the State of New York is required for the execution and delivery by the Company and the LLC, as applicable, of the Purchase Agreement, the Equity Registration Rights Agreement, the Notes Registration Rights Agreement, the Agency Agreement, the Escrow Agreement, the Unit Agreement, the Company-LLC Subscription Agreement or the Indenture or for the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement, the issuance and delivery of the Exchange Notes or the Private Exchange Notes, if any, in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, or the consummation by the Company and the LLC, as applicable, of any of the transactions contemplated in such instruments and agreements, or the issuance, sale and delivery of the Holding Shares by the LLC pursuant to the Purchase Agreement (except for authorizations required under the securities or Blue Sky laws of certain jurisdictions, as to which we express no opinion) nor will such issuance, sale and delivery of the Securities to the Initial Purchasers or the execution, delivery and performance of such instruments and agreements by the Company and the LLC, as applicable, conflict with, or result in a violation of any of the terms or provisions of, any existing applicable United States Federal or New York State judgment, order or decree which is known to such counsel or any law, rule or regulation, in any such case, of any government, governmental instrumentality or court located in the United States having jurisdiction over the Company or any of its properties or assets, except that (a) the transactions contemplated by the Notes Registration Rights Agreement are subject, to the extent set forth therein, to the registration and other requirements of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and (b) the transactions contemplated by the Equity Registration Rights Agreement are subject, to the extent set forth therein, to the registration requirements of the Act;
(2) to our knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company or the LLC is a party, or to which the property of the Company or the LLC is subject, before or brought by any court or governmental agency or body in the Federal courts of the United States or in any State court in the State of New York, which might reasonably be expected to have or result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation or performance by the Company or the LLC of its obligations under any of the Operative Documents;
(3) the execution, delivery and performance of the Operative Documents, the issuance by the Company of the Notes, the issuance by the LLC of the Holding Shares and the consummation of the transactions contemplated in the Operative Documents and compliance by the Company and the LLC with their respective obligations under the Operative Documents will not, whether with or without the giving of notice or lapse of time or both, (a) conflict with or constitute a breach of, or a default or otherwise cause or permit any holder of indebtedness of the Company to have a right to require the repurchase, redemption or repayment of any of such indebtedness of the Company or the LLC under or (b) result in the creation or imposition of any lien (other than liens contemplated by the Escrow Agreement), charge or encumbrance upon any property or assets of the Company or the LLC pursuant to any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to us, to which the Company or the LLC is a party or by which either of them may be bound, or to which any of the property or assets of the Company or the LLC is subject, or (c) result in any violation of the provisions of the LLC AgreementFinal Memorandum, or any applicable New York or Federal lawdocument which upon filing with the Commission would be incorporated by reference in either Memorandum, statute, rule, regulation, judgment, order, writ or decree, known to us, of shall at any government, government instrumentality or court having jurisdiction over the Company or the LLC or any of their respective properties, assets or operations except in the case of (a), (b), or (c) above, such as would not, either singly or in the aggregate, have a Material Adverse Effect;
(4) the Notes are in the form contemplated by the Indenture and assuming that (a) the Company has been duly organized and is validly existing and in good standing under the laws of the Federative Republic of Brazil, (b) the Company has all requisite corporate power and authority to issue, sell and deliver the Notes and the issuance, sale and delivery of the Notes has been duly authorized by all requisite corporate action by the Company, (c) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action of the Company, (d) the Company has all requisite corporate power and authority to execute and deliver the Purchase Agree- ment, the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite corporate action by the Company, (e) the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement time have been duly executed and delivered by the Company, made or filed to which you have objected or shall object in writing.
(f) At the LLC has all requisite limited liability power and authority to execute and deliver time of purchase or the Unit Agreementadditional time of purchase, as the case may be, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite limited liability company action by the LLC, (g) the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement have been duly executed and delivered by the LLC, (I) when the Notes are authenticated by the Trustee in accordance with the provisions of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and delivered and paid for in accordance with the terms of this Agreement, registered holders of the Notes will be entitled to the benefits of the Indenture and the Indenture will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, (II) when the Exchange Notes and the Private Exchange Notes, if any, are authenticated and delivered in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, registered holders of the Exchange Notes and Private Exchange Notes will be entitled to the benefits of the Indenture and will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, and (III) each of the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, and (IV) each of the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement constitutes a valid and binding obligation of the LLC, enforceable against the LLC in accordance with its terms, except, in each case, (x) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the rights and remedies of creditors generally and (y) such counsel need express no opinion concerning the enforceability of, or the enforceability under law under certain circumstances of, the indemnification provisions of Section 4 of the Notes Registration Rights Agreement or Section 5 of the Equity Registration Rights Agreement with respect to a liability where such indemnification is contrary to public policy;
(5) assuming compliance by the Escrow Agent with the terms of the Escrow Agreement, the Escrow Agreement creates a valid perfected security interest in favor of the Trustee in all right, title and interest of the Company in and to the Escrow Account and the Collateral;
(6) the statements in the Offering Final Memorandum under the headings "Summary -- The Offering," "Description of the Units," "Description of the Notes," "Exchange Offer; Notes Registration Rights" and "Equity Registration and Other Rights," insofar as such statements purport to summarize certain provisions of the Units, the Notes, the Exchange Notes, the Private Exchange Notes, the Indenture, the Notes Registration Rights Agreement and the Equity Registration Rights Agreement, provide a fair summary of such provisions of such agreements and instruments;
(7) assuming the Securities are issued and sold under the circumstances contemplated by this Agreement and the representations and warranties of the Issuers and the Initial Purchasers set forth herein are true and correct, it is shall not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated by the Purchase Agreement and the Offering Memorandum to register the Securities under the 1933 Act or to qualify the Indenture under the Trust Indenture Act;
(8) assuming the Company invests the net proceeds of the Offering as described under "Use of Proceeds" in the Final Offering Memorandum, neither the Company nor the LLC is an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940 (the "Investment Company Act") nor is the Company or the LLC otherwise subject to regulation or registration under the Investment Company Act. In forming the foregoing opinion, we are not relying on the availability of any exemption under Section 3(c)(1) or 3(c)(7) of the Investment Company Act;
(9) the statements in the Offering Memorandum under the caption "Tax Considerations -- United States" fairly summarize the material United States Federal tax consequences of acquiring, owning and disposing of the Units, the Notes, the Exchange Notes and the Holding Shares;
(10) the LLC will be treated for federal income tax purposes as a partnership and, based on the manner in which it intends to limit its business activities and monitor its "qualifying income" for purposes of Section 7704(c) of the Internal Revenue Code of 1986, as amended (the "Code"), it will not be classified as a publicly traded partnership that is treated as a corporation under section 7704(a) of the Code. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclauses (7) and (10) above), on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon opinions of officers and other representatives of the Issuers), on the basis of the foregoing nothing has come to its attention to cause it to believe that the Offering Memorandum at the date thereof or as of the Closing Time, contained or contains contain an untrue statement of a material fact or omitted or omits omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading misleading.
(it being understood that such counsel has not been requested to and does not make any comment with respect to (ig) Between the financial statements, time of execution of this Agreement and the notes thereto and related schedulestime of purchase or the additional time of purchase, (ii) other financial or statistical data found in or derivable from as the financialcase may be, accounting or internal records of the Issuers or (iii) any forward-looking or projected financial or statistical data relating to the Issuers, in each case, included in the Offering Memorandum). In rendering such opinion, such counsel (A) need not express no material adverse change or any opinion with regard to development involving a prospective material adverse change in the application business, properties, management, financial condition or results of laws of any jurisdiction other than the Federal laws operations of the United States Company and the laws of the State of New York Subsidiaries taken as a whole shall occur or become known and (B) may rely as no transaction which is material and adverse to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Issuers and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). References to the Offering Memorandum in this Section (a) include any supplement thereto prior to the Closing Time.
(b) At the Closing Time, the Initial Purchasers shall have received the opinion of Xavier, Bernardes, Braganca, Brazilian counsel to the Issuers, dated as of the Closing Time, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchaser, to the effect that:
(1) the Company has been duly organized and is a validly existing sociedade anonima in good standing under entered into by the laws Company or any of the Federative Republic Subsidiaries.
(h) The Company will, at the time of Brazilpurchase and, with full corporate power if applicable, at the additional time of purchase, deliver to you a certificate of its Chief Executive Officer and authority to ownits Chief Financial Officer, lease and operate its assets and properties and conduct its business currently conducted and dated the time of purchase or the additional time of purchase, as described the case may be, in the Offering Memorandum;form attached as Exhibit D hereto.
(2i) The Company will, at the authorizedtime of purchase and, issued if applicable, at the additional time of purchase, deliver to you a certificate of its Chief Financial Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit E.
(j) You shall have received copies, duly executed by the Company and outstanding capital stock the other parties thereto, of the Indenture and the Registration Rights Agreement.
(k) You shall have received each of the signed Lock-Up Agreements referred to in Section 3(z) hereof, and each such Lock-Up Agreement shall be in full force and effect at the time of purchase and the additional time of purchase, as the case may be.
(l) The Company is shall have furnished to you such other documents and certificates as set forth to the accuracy and completeness of any statement in the Offering Final Memorandum under the subheading "Actual" under the caption "Capitalization" (except that 8,700 additional shares as of the Company's redeemable preferred stock were subsequently issued); time of purchase and, if applicable, the Company does not have any subsidiaries;additional time of purchase, as you may reasonably request.
(am) the Company has the requisite corporate power and authority The Notes shall have been designated for trading on PORTAL, subject only to issue, sell and deliver the Notes pursuant notice of issuance at or prior to the Purchase time of purchase.
(n) Between the time of execution of this Agreement and the issuancetime of purchase or additional time of purchase, sale and delivery of as the Notes pursuant to the Purchase Agreement case may be, there shall not have occurred any downgrading, nor shall any notice have been duly authorized by all requisite corporate action given of (i) any intended or potential downgrading or (ii) any watch, review or possible change that does not indicate an affirmation or improvement in the rating accorded any debt securities of or guaranteed by the Company; (bCompany or any Subsidiary by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) under the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action by the Company; (c) the Company has the requisite corporate power and authority to issue, sell and deliver the Common Stock pursuant to the Company-LLC Subscription Agreement and thAct.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities hereunder are subject to the continued accuracy, as of the Closing Time, accuracy of the representations and warranties on the part of the Issuers herein contained, to Company on the accuracy of the statements of the Issuers and officers of the Issuers made in any certificate pursuant to the provisions date hereof, to at the time of purchase and, if applicable, at the additional time of purchase, the performance by each of the Issuers Company of its obligations hereunder, hereunder and to the following further conditionsadditional conditions precedent:
(a) At The Company shall furnish to you at the Closing Timetime of purchase and, if applicable, at the Initial Purchasers shall have received the additional time of purchase, an opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, addressed to the Representatives, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representative, and in form and substance satisfactory to the Representatives, in the form set forth in Exhibit B hereto.
(b) The Company shall furnish to you at the time of purchase and, if applicable, at the additional time of purchase, an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, United States counsel Vice President, General Counsel and Secretary of the Company, addressed to the IssuersRepresentatives, and dated the time of purchase or the additional time of purchase, as the case may be, with executed copies for each Representative, and in form and substance satisfactory to the Representatives, in the form set forth in Exhibit C hereto.
(c) You shall have received from KPMG LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives (with executed copies for each Representative) in the forms satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the various financial disclosures relating to the Company and its subsidiaries, including pro forma financial information, contained in the Preliminary Memorandum and the Final Memorandum.
(d) You shall have received from PricewaterhouseCoopers LLP letters dated, respectively, the date of this Agreement, the date of the Final Memorandum, the time of purchase and, if applicable, the additional time of purchase, and addressed to the Representatives (with executed copies for each Representative) in the forms satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the various financial disclosures relating to IRP and its subsidiaries contained in the Preliminary Memorandum and the Final Memorandum.
(e) You shall have received at the time of purchase and, if applicable, at the additional time of purchase, the favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Initial Purchasers, dated the time of purchase or the additional time of purchase, as of the Closing Timecase may be, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, to the effect that:Representatives.
(1f) no consent, approval, authorization, order, registration At the time of purchase or qualification additional time of or with any court or governmental agency or body in the United States of America or the State of New York is required for the execution and delivery by the Company and the LLCpurchase, as applicable, of the Purchase AgreementPreliminary Memorandum, the Equity Registration Rights Agreementwhen taken together with Term Sheet, the Notes Registration Rights Agreement, the Agency Agreement, the Escrow Agreement, the Unit Agreement, the Company-LLC Subscription Agreement or the Indenture or for the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement, the issuance and delivery of the Exchange Notes or the Private Exchange Notes, if any, in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, or the consummation by the Company and the LLC, as applicable, exclusive of any of the transactions contemplated in such instruments and agreementsamendment or supplement, or the issuance, sale and delivery of the Holding Shares by the LLC pursuant to the Purchase Agreement (except for authorizations required under the securities or Blue Sky laws of certain jurisdictions, as to which we express no opinion) nor will such issuance, sale and delivery of the Securities to the Initial Purchasers or the execution, delivery and performance of such instruments and agreements by the Company and the LLC, as applicable, conflict with, or result in a violation of any of the terms or provisions of, any existing applicable United States Federal or New York State judgment, order or decree which is known to such counsel or any law, rule or regulation, in any such case, of any government, governmental instrumentality or court located in the United States having jurisdiction over the Company or any of its properties or assets, except that (a) the transactions contemplated by the Notes Registration Rights Agreement are subject, to the extent set forth therein, to the registration and other requirements of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and (b) the transactions contemplated by the Equity Registration Rights Agreement are subject, to the extent set forth therein, to the registration requirements of the Act;
(2) to our knowledge, there is shall not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company or the LLC is a party, or to which the property of the Company or the LLC is subject, before or brought by any court or governmental agency or body in the Federal courts of the United States or in any State court in the State of New York, which might reasonably be expected to have or result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation or performance by the Company or the LLC of its obligations under any of the Operative Documents;
(3) the execution, delivery and performance of the Operative Documents, the issuance by the Company of the Notes, the issuance by the LLC of the Holding Shares and the consummation of the transactions contemplated in the Operative Documents and compliance by the Company and the LLC with their respective obligations under the Operative Documents will not, whether with or without the giving of notice or lapse of time or both, (a) conflict with or constitute a breach of, or a default or otherwise cause or permit any holder of indebtedness of the Company to have a right to require the repurchase, redemption or repayment of any of such indebtedness of the Company or the LLC under or (b) result in the creation or imposition of any lien (other than liens contemplated by the Escrow Agreement), charge or encumbrance upon any property or assets of the Company or the LLC pursuant to any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to us, to which the Company or the LLC is a party or by which either of them may be bound, or to which any of the property or assets of the Company or the LLC is subject, or (c) result in any violation of the provisions of the LLC Agreement, or any applicable New York or Federal law, statute, rule, regulation, judgment, order, writ or decree, known to us, of any government, government instrumentality or court having jurisdiction over the Company or the LLC or any of their respective properties, assets or operations except in the case of (a), (b), or (c) above, such as would not, either singly or in the aggregate, have a Material Adverse Effect;
(4) the Notes are in the form contemplated by the Indenture and assuming that (a) the Company has been duly organized and is validly existing and in good standing under the laws of the Federative Republic of Brazil, (b) the Company has all requisite corporate power and authority to issue, sell and deliver the Notes and the issuance, sale and delivery of the Notes has been duly authorized by all requisite corporate action by the Company, (c) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action of the Company, (d) the Company has all requisite corporate power and authority to execute and deliver the Purchase Agree- ment, the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite corporate action by the Company, (e) the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement have been duly executed and delivered by the Company, (f) the LLC has all requisite limited liability power and authority to execute and deliver the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite limited liability company action by the LLC, (g) the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement have been duly executed and delivered by the LLC, (I) when the Notes are authenticated by the Trustee in accordance with the provisions of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and delivered and paid for in accordance with the terms of this Agreement, registered holders of the Notes will be entitled to the benefits of the Indenture and the Indenture will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, (II) when the Exchange Notes and the Private Exchange Notes, if any, are authenticated and delivered in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, registered holders of the Exchange Notes and Private Exchange Notes will be entitled to the benefits of the Indenture and will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, and (III) each of the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, and (IV) each of the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement constitutes a valid and binding obligation of the LLC, enforceable against the LLC in accordance with its terms, except, in each case, (x) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the rights and remedies of creditors generally and (y) such counsel need express no opinion concerning the enforceability of, or the enforceability under law under certain circumstances of, the indemnification provisions of Section 4 of the Notes Registration Rights Agreement or Section 5 of the Equity Registration Rights Agreement with respect to a liability where such indemnification is contrary to public policy;
(5) assuming compliance by the Escrow Agent with the terms of the Escrow Agreement, the Escrow Agreement creates a valid perfected security interest in favor of the Trustee in all right, title and interest of the Company in and to the Escrow Account and the Collateral;
(6) the statements in the Offering Memorandum under the headings "Summary -- The Offering," "Description of the Units," "Description of the Notes," "Exchange Offer; Notes Registration Rights" and "Equity Registration and Other Rights," insofar as such statements purport to summarize certain provisions of the Units, the Notes, the Exchange Notes, the Private Exchange Notes, the Indenture, the Notes Registration Rights Agreement and the Equity Registration Rights Agreement, provide a fair summary of such provisions of such agreements and instruments;
(7) assuming the Securities are issued and sold under the circumstances contemplated by this Agreement and the representations and warranties of the Issuers and the Initial Purchasers set forth herein are true and correct, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated by the Purchase Agreement and the Offering Memorandum to register the Securities under the 1933 Act or to qualify the Indenture under the Trust Indenture Act;
(8) assuming the Company invests the net proceeds of the Offering as described under "Use of Proceeds" in the Final Offering Memorandum, neither the Company nor the LLC is an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940 (the "Investment Company Act") nor is the Company or the LLC otherwise subject to regulation or registration under the Investment Company Act. In forming the foregoing opinion, we are not relying on the availability of any exemption under Section 3(c)(1) or 3(c)(7) of the Investment Company Act;
(9) the statements in the Offering Memorandum under the caption "Tax Considerations -- United States" fairly summarize the material United States Federal tax consequences of acquiring, owning and disposing of the Units, the Notes, the Exchange Notes and the Holding Shares;
(10) the LLC will be treated for federal income tax purposes as a partnership and, based on the manner in which it intends to limit its business activities and monitor its "qualifying income" for purposes of Section 7704(c) of the Internal Revenue Code of 1986, as amended (the "Code"), it will not be classified as a publicly traded partnership that is treated as a corporation under section 7704(a) of the Code. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclauses (7) and (10) above), on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon opinions of officers and other representatives of the Issuers), on the basis of the foregoing nothing has come to its attention to cause it to believe that the Offering Memorandum at the date thereof or as of the Closing Time, contained or contains include an untrue statement of a material fact or omitted or omits omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading misleading.
(it being understood that such counsel has not been requested g) The Company will, at the time of purchase and, if applicable, at the additional time of purchase, deliver to you a certificate of its Chief Executive Officer and does not make any comment with respect its Chief Accounting Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit D hereto.
(h) The Company will, at the time of purchase and, if applicable, at the additional time of purchase, deliver to you a certificate of its Chief Accounting Officer, dated the time of purchase or the additional time of purchase, as the case may be, in the form attached as Exhibit E hereto.
(i) You shall have received copies, duly executed by the financial statementsCompany and the other party or parties thereto, of the Indenture.
(j) You shall have received each of the signed agreements (“Lock-Up Agreements”), in the form set forth as Exhibit A hereto, of each of its directors and officers (within the meaning of Rule 16a-1(f) under the Exchange Act) named in Exhibit A-1 hereto, and each such Lock-Up Agreement shall be in full force and effect at the notes thereto time of purchase and related schedulesthe additional time of purchase, as the case may be.
(iik) The Company shall have furnished to you such other financial documents and certificates as to the accuracy and completeness of any statement in the Preliminary Memorandum, the Final Memorandum or statistical data found in or derivable from the financial, accounting or internal records Term Sheet as of the Issuers or time of purchase and, if applicable, the additional time of purchase, as you may reasonably request.
(iiil) any forward-looking or projected financial or statistical data relating to the Issuers, in each case, The Notes shall be included in the Offering Memorandum). In rendering such opinion, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal laws book-entry settlement system of the United States and the laws DTC, subject only to notice of the State of New York and (B) may rely as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Issuers and public officials. Such opinion shall not state that it is to be governed issuance at or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). References to the Offering Memorandum in this Section (a) include any supplement thereto prior to the Closing Timetime of purchase.
(bm) At the Closing Time, the Initial Purchasers The Shares shall have received been approved for quotation on the opinion NASDAQ, subject only to notice of Xavier, Bernardes, Braganca, Brazilian counsel to the Issuers, dated as of the Closing Time, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchaser, to the effect that:issuance.
(1n) the Company has been duly organized and is There shall exist no event or condition which would constitute a validly existing sociedade anonima in good standing default or an event of default under the laws of Notes or the Federative Republic of Brazil, with full corporate power and authority to own, lease and operate its assets and properties and conduct its business currently conducted and as described in the Offering Memorandum;
(2) the authorized, issued and outstanding capital stock of the Company is as set forth in the Offering Memorandum under the subheading "Actual" under the caption "Capitalization" (except that 8,700 additional shares of the Company's redeemable preferred stock were subsequently issued); the Company does not have any subsidiaries;
(a) the Company has the requisite corporate power and authority to issue, sell and deliver the Notes pursuant to the Purchase Agreement and the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement have been duly authorized by all requisite corporate action by the Company; (b) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action by the Company; (c) the Company has the requisite corporate power and authority to issue, sell and deliver the Common Stock pursuant to the Company-LLC Subscription Agreement and thIndenture.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase and pay for the Securities are hereunder shall be subject to the continued accuracy, as of the Closing Time, continuing accuracy of the representations and warranties of the Issuers Company herein contained, to the accuracy as of the statements date hereof and as of the Issuers Closing Date as if they had been made on and officers as of the Issuers made in any certificate pursuant to the provisions hereof, to Closing Date; and the performance by each the Company on and as of the Issuers Closing Date of its covenants and obligations hereunder, hereunder and to the following further conditions:
(a) At The Initial Purchasers shall not have advised the Company that the Offering Memorandum, or any supplement or amendment thereto, contains an untrue statement of fact which, in the Initial Purchasers' opinion, is material, or omits to state a fact which, in the Initial Purchasers' opinion, is material and is required to be stated therein or is necessary to make the statements, in light of the circumstances under which they were made, not misleading. No order suspending the sale of the Securities in any jurisdiction shall have been issued on the Closing TimeDate and no proceedings for that purpose shall have been instituted or shall be contemplated.
(b) On or prior to the Closing Date the Initial Purchasers shall have received from Kell▇▇ ▇▇▇▇ & ▇arr▇▇ ▇▇▇ such opinion or opinions with respect to the organization of the Company, the validity of the Debentures, the Conversion Shares, the Offering Memorandum and other related matters as the Initial Purchasers may request and Kell▇▇ ▇▇▇▇ & ▇arr▇▇ ▇▇▇ shall have received such papers and information as they request to enable it to pass upon such matters.
(c) On the Closing Date the Initial Purchasers shall have received the favorable opinion of Rubi▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ stant & ▇▇▇▇▇Frie▇▇▇▇, United States counsel ▇▇unsel to the IssuersCompany, dated as of the Closing TimeDate, addressed to the Initial Purchasers and in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial PurchasersKell▇▇ ▇▇▇▇ & ▇arr▇▇ ▇▇▇, to the effect that:
(1A) no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body in the United States of America or the State of New York is required for the execution and delivery by the Company and the LLC, as applicable, each of the Purchase Agreement, the Equity Registration Rights Agreement, the Notes Registration Rights Agreement, the Agency Agreement, the Escrow Agreement, the Unit Agreement, the Company-LLC Subscription Agreement or the Indenture or for the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement, the issuance and delivery of the Exchange Notes or the Private Exchange Notes, if any, in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, or the consummation by the Company and the LLC, as applicable, of any of the transactions contemplated in such instruments and agreements, or the issuance, sale and delivery of the Holding Shares by the LLC pursuant to the Purchase Agreement (except for authorizations required under the securities or Blue Sky laws of certain jurisdictions, as to which we express no opinion) nor will such issuance, sale and delivery of the Securities to the Initial Purchasers or the execution, delivery and performance of such instruments and agreements by the Company and the LLC, as applicable, conflict with, or result in a violation of any of the terms or provisions of, any existing applicable United States Federal or New York State judgment, order or decree which is known to such counsel or any law, rule or regulation, in any such case, of any government, governmental instrumentality or court located in the United States having jurisdiction over the Company or any of its properties or assets, except that (a) the transactions contemplated by the Notes Registration Rights Agreement are subject, to the extent set forth therein, to the registration and other requirements of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and (b) the transactions contemplated by the Equity Registration Rights Agreement are subject, to the extent set forth therein, to the registration requirements of the Act;
(2) to our knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company or the LLC is a party, or to which the property of the Company or the LLC is subject, before or brought by any court or governmental agency or body in the Federal courts of the United States or in any State court in the State of New York, which might reasonably be expected to have or result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation or performance by the Company or the LLC of its obligations under any of the Operative Documents;
(3) the execution, delivery and performance of the Operative Documents, the issuance by the Company of the Notes, the issuance by the LLC of the Holding Shares and the consummation of the transactions contemplated in the Operative Documents and compliance by the Company and the LLC with their respective obligations under the Operative Documents will not, whether with or without the giving of notice or lapse of time or both, (a) conflict with or constitute a breach of, or a default or otherwise cause or permit any holder of indebtedness of the Company to have a right to require the repurchase, redemption or repayment of any of such indebtedness of the Company or the LLC under or (b) result in the creation or imposition of any lien (other than liens contemplated by the Escrow Agreement), charge or encumbrance upon any property or assets of the Company or the LLC pursuant to any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to us, to which the Company or the LLC is a party or by which either of them may be bound, or to which any of the property or assets of the Company or the LLC is subject, or (c) result in any violation of the provisions of the LLC Agreement, or any applicable New York or Federal law, statute, rule, regulation, judgment, order, writ or decree, known to us, of any government, government instrumentality or court having jurisdiction over the Company or the LLC or any of their respective properties, assets or operations except in the case of (a), (b), or (c) above, such as would not, either singly or in the aggregate, have a Material Adverse Effect;
(4) the Notes are in the form contemplated by the Indenture and assuming that (a) the Company Subsidiaries has been duly organized and the Company and each of the Subsidiaries is validly existing and as a corporation, partnership or limited liability company, as the case may be, in good standing under the laws of the Federative Republic its jurisdiction of Brazilformation, (bB) the Company and each of the Significant Subsidiaries is duly qualified and in good standing as a foreign corporation (or, with respect to the Partnership, as a foreign partnership and with respect to the Limited Liability Company, as a foreign limited liability company) in each jurisdiction identified in a schedule to such opinion and (C) the Company and each of the Subsidiaries has all requisite corporate power and authority to issueown or lease its properties and conduct its business as described in the Offering Memorandum;
ii) the Company's authorized capital stock is as set forth under the heading "Capitalization" in the Offering Memorandum, sell and deliver subject to such adjustments therein as are expressly contemplated by the Notes and the issuance, sale and delivery Offering Memorandum; all of the Notes outstanding shares of capital stock of each of the Subsidiaries are owned by the Company, directly or through one or more Subsidiaries, in each case free and clear of any liens, charges, claims, pledges, security interests or encumbrances of any kind whatsoever other than as disclosed in the Offering Memorandum;
iii) except as disclosed in the Offering Memorandum, to the best of such counsel's knowledge, neither the Company nor any of the Subsidiaries is a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities of the Company or any of the Subsidiaries, except for this Agreement and as described in the Offering Memorandum, the Indenture, the Securities and all other securities issued or issuable by each of the Company or any of the Subsidiaries which are described in the Offering Memorandum conform, or when issued and paid for, will conform in all material respects to the descriptions thereof contained in the Offering Memorandum; all issued and outstanding capital stock of the Company or any of the Subsidiaries has been duly authorized by all requisite corporate action and validly issued and is fully paid and non-assessable; to the best of such counsel's knowledge, none of such securities were issued in violation of the preemptive rights of any securityholder of the Company or any of the Subsidiaries or similar contractual rights granted by the CompanyCompany or any of the Subsidiaries or applicable securities laws; the Debentures have been duly authorized and, (c) when validly authenticated, issued, delivered and paid for by the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes Initial Purchasers in the manner contemplated by this Agreement, will be duly authorized, validly issued and outstanding obligations of the Notes Registration Rights Agreement Company entitled to the benefits of the Indenture and such issuance and delivery has enforceable against the Company in accordance with their terms, except to the extent that enforceability thereof may be limited by (1) bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally; or (2) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); the Indenture conforms in all material respects to the description thereof set forth in the Offering Memorandum; the shares of Common Stock issuable upon conversion of the Debentures have been duly authorized by all requisite corporate action of the Companyand reserved for issuance upon conversion and, (d) the Company has all requisite corporate power and authority to execute and deliver the Purchase Agree- mentwhen issued, the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite corporate action by the Company, (e) the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement have been duly executed and delivered by the Company, (f) the LLC has all requisite limited liability power and authority to execute and deliver the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite limited liability company action by the LLC, (g) the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement have been duly executed and delivered by the LLC, (I) when the Notes are authenticated by the Trustee in accordance with the provisions of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and delivered and paid for in accordance with the terms of the Indenture, will be validly issued, fully paid and nonassessable; and the holders of outstanding securities of the Company are not entitled to any preemptive rights with respect to the Securities; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form; upon the issuance and delivery pursuant to this Agreement and the Indenture of the Debentures to be sold by the Company hereunder, the Initial Purchasers will acquire good and marketable title thereto free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest or other restriction or equity of any kind whatsoever;
iv) the descriptions in the Offering Memorandum of agreements and documents to which the Company or any of the Subsidiaries is a party or by which any of them or their respective properties are bound, including any such agreement or document incorporated by reference into the Offering Memorandum, or of any statutes, are accurate in all material respects and fairly present the subject matter thereof; to the best of such counsel's knowledge, there is no action, arbitration, suit, or other proceeding pending or threatened in writing or any judgments outstanding against the Company or any of the Subsidiaries or involving the properties or business of the Company or any of the Subsidiaries which (A) questions the validity of the capital stock of the Company or any of the Subsidiaries or of this Agreement, registered holders the Indenture, the Registration Rights Agreement or of any action taken or to be taken by the Company or any of the Notes will be entitled Subsidiaries pursuant to or in connection with any of the benefits foregoing or (B) except as disclosed in the Offering Memorandum, could have a Material Adverse Effect;
v) the Company has the corporate power and authority to execute, deliver and perform each of this Agreement, Indenture and the Registration Rights Agreement and to consummate the transactions provided for herein and therein; the execution and delivery of this Agreement, the Indenture and the Registration Rights Agreement have been duly authorized by all requisite corporate action on the part of the Company and each of this Agreement, the Indenture will constitute and the Registration Rights Agreement has been duly executed and delivered by the Company, and, assuming due authorization, execution and delivery by each other party thereto, constitutes a legal, valid and binding obligation agreement of the Company enforceable against the Company in accordance with its terms, (II) when the Exchange Notes and the Private Exchange Notes, if any, are authenticated and delivered in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, registered holders of the Exchange Notes and Private Exchange Notes will be entitled ; except to the benefits of the Indenture and will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, and (III) each of the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, and (IV) each of the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement constitutes a valid and binding obligation of the LLC, enforceable against the LLC in accordance with its terms, except, in each case, (x) as the enforceability extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the rights and remedies of creditors generally and (y) such counsel need express no opinion concerning the enforceability of, now or the enforceability under law under certain circumstances of, the indemnification provisions of Section 4 of the Notes Registration Rights Agreement or Section 5 of the Equity Registration Rights Agreement with respect to a liability where such indemnification is contrary to public policy;
(5) assuming compliance by the Escrow Agent with the terms of the Escrow Agreement, the Escrow Agreement creates a valid perfected security interest hereafter in favor of the Trustee in all right, title and interest of the Company in and to the Escrow Account and the Collateral;
(6) the statements in the Offering Memorandum under the headings "Summary -- The Offering," "Description of the Units," "Description of the Notes," "Exchange Offer; Notes Registration Rights" and "Equity Registration and Other Rights," insofar as such statements purport to summarize certain provisions of the Units, the Notes, the Exchange Notes, the Private Exchange Notes, the Indenture, the Notes Registration Rights Agreement and the Equity Registration Rights Agreement, provide a fair summary of such provisions of such agreements and instruments;
(7) assuming the Securities are issued and sold under the circumstances contemplated by this Agreement and the representations and warranties of the Issuers and the Initial Purchasers set forth herein are true and correct, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated by the Purchase Agreement and the Offering Memorandum to register the Securities under the 1933 Act or to qualify the Indenture under the Trust Indenture Act;
(8) assuming the Company invests the net proceeds of the Offering as described under "Use of Proceeds" in the Final Offering Memorandum, neither the Company nor the LLC is an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940 (the "Investment Company Act") nor is the Company or the LLC otherwise subject to regulation or registration under the Investment Company Act. In forming the foregoing opinion, we are not relying on the availability of any exemption under Section 3(c)(1) or 3(c)(7) of the Investment Company Act;
(9) the statements in the Offering Memorandum under the caption "Tax Considerations -- United States" fairly summarize the material United States Federal tax consequences of acquiring, owning and disposing of the Units, the Notes, the Exchange Notes and the Holding Shares;
(10) the LLC will be treated for federal income tax purposes as a partnership and, based on the manner in which it intends to limit its business activities and monitor its "qualifying income" for purposes of Section 7704(c) of the Internal Revenue Code of 1986, as amended (the "Code"), it will not be classified as a publicly traded partnership that is treated as a corporation under section 7704(a) of the Code. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclauses (7) and (10) above), on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon opinions of officers and other representatives of the Issuers), on the basis of the foregoing nothing has come to its attention to cause it to believe that the Offering Memorandum at the date thereof or as of the Closing Time, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been requested to and does not make any comment with respect to (i) the financial statements, and the notes thereto and related schedules, (ii) other financial or statistical data found in or derivable from the financial, accounting or internal records of the Issuers or (iii) any forward-looking or projected financial or statistical data effect relating to the Issuers, in each case, included in the Offering Memorandum). In rendering such opinion, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal laws of the United States and the laws of the State of New York and (B) may rely as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Issuers and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). References to the Offering Memorandum in this Section (a) include any supplement thereto prior to the Closing Time.
(b) At the Closing Time, the Initial Purchasers shall have received the opinion of Xavier, Bernardes, Braganca, Brazilian counsel to the Issuers, dated as of the Closing Time, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchaser, to the effect that:
(1) the Company has been duly organized and is a validly existing sociedade anonima in good standing under the laws of the Federative Republic of Brazil, with full corporate power and authority to own, lease and operate its assets and properties and conduct its business currently conducted and as described in the Offering Memorandum;
(2) the authorized, issued and outstanding capital stock of the Company is as set forth in the Offering Memorandum under the subheading "Actual" under the caption "Capitalization" (except that 8,700 additional shares of the Company's redeemable preferred stock were subsequently issued); the Company does not have any subsidiaries;
(a) the Company has the requisite corporate power and authority to issue, sell and deliver the Notes pursuant to the Purchase Agreement and the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement have been duly authorized by all requisite corporate action by the Company; (b) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action by the Company; (c) the Company has the requisite corporate power and authority to issue, sell and deliver the Common Stock pursuant to the Company-LLC Subscription Agreement and thcreditors' rights generally and
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The respective obligations of the several Initial Purchasers to purchase and pay for the Securities hereunder on any Closing Date are subject to the continued accuracy, as of the when made and on such Closing TimeDate, of the representations and warranties of the Issuers herein containedCompany contained herein, to the accuracy of the statements of the Issuers and officers of the Issuers Company made in any certificate certificates pursuant to the provisions hereof, to the performance by each the Company of the Issuers of its their obligations hereunder, and to each of the following further additional terms and conditions:
(a) At The Offering Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to the Closing Time, Representatives as promptly as practicable on or following the date of this Agreement or at such other date and time as to which the Representatives may agree; and no stop order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(b) None of the Initial Purchasers shall have received discovered and disclosed to the Company on or prior to such Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact that, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇counsel for the Initial Purchasers, United States is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of each of the Transaction Documents, 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 shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. shall have furnished to the Representatives such counsel’s written opinion, as counsel to the IssuersCompany, addressed to the Initial Purchasers and dated as of the such Closing TimeDate, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial PurchasersRepresentatives, to the effect that:
(1i) no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body in the United States of America or the State of New York is required for the execution and delivery by the Company and the LLC, as applicable, of the Purchase Agreement, the Equity Registration Rights Agreement, the Notes Registration Rights Agreement, the Agency Agreement, the Escrow Agreement, the Unit Agreement, the Company-LLC Subscription Agreement or the Indenture or for the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement, the issuance and delivery of the Exchange Notes or the Private Exchange Notes, if any, in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, or the consummation by the Company and the LLC, as applicable, of any of the transactions contemplated in such instruments and agreements, or the issuance, sale and delivery of the Holding Shares by the LLC pursuant to the Purchase Agreement (except for authorizations required under the securities or Blue Sky laws of certain jurisdictions, as to which we express no opinion) nor will such issuance, sale and delivery of the Securities to the Initial Purchasers or the execution, delivery and performance of such instruments and agreements by the Company and the LLC, as applicable, conflict with, or result in a violation of any of the terms or provisions of, any existing applicable United States Federal or New York State judgment, order or decree which is known to such counsel or any law, rule or regulation, in any such case, of any government, governmental instrumentality or court located in the United States having jurisdiction over the Company or any of its properties or assets, except that (a) the transactions contemplated by the Notes Registration Rights Agreement are subject, to the extent set forth therein, to the registration and other requirements of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and (b) the transactions contemplated by the Equity Registration Rights Agreement are subject, to the extent set forth therein, to the registration requirements of the Act;
(2) to our knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company or the LLC is a party, or to which the property of the Company or the LLC is subject, before or brought by any court or governmental agency or body in the Federal courts of the United States or in any State court in the State of New York, which might reasonably be expected to have or result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation or performance by the Company or the LLC of its obligations under any of the Operative Documents;
(3) the execution, delivery and performance of the Operative Documents, the issuance by the Company of the Notes, the issuance by the LLC of the Holding Shares and the consummation of the transactions contemplated in the Operative Documents and compliance by the Company and the LLC with their respective obligations under the Operative Documents will not, whether with or without the giving of notice or lapse of time or both, (a) conflict with or constitute a breach of, or a default or otherwise cause or permit any holder of indebtedness of the Company to have a right to require the repurchase, redemption or repayment of any of such indebtedness of the Company or the LLC under or (b) result in the creation or imposition of any lien (other than liens contemplated by the Escrow Agreement), charge or encumbrance upon any property or assets of the Company or the LLC pursuant to any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to us, to which the Company or the LLC is a party or by which either of them may be bound, or to which any of the property or assets of the Company or the LLC is subject, or (c) result in any violation of the provisions of the LLC Agreement, or any applicable New York or Federal law, statute, rule, regulation, judgment, order, writ or decree, known to us, of any government, government instrumentality or court having jurisdiction over the Company or the LLC or any of their respective properties, assets or operations except in the case of (a), (b), or (c) above, such as would not, either singly or in the aggregate, have a Material Adverse Effect;
(4) the Notes are in the form contemplated by the Indenture and assuming that (a) the The Company has been duly organized incorporated and is validly existing and as a corporation in good standing under the laws of the Federative Republic State of BrazilDelaware, and is duly qualified to do business and is in corporate good standing as a foreign corporation in the Commonwealth of Massachusetts.
(bii) All of the issued shares of capital stock of the Company has all requisite corporate power and authority to issue, sell and deliver the Notes and the issuance, sale and delivery of the Notes has have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in or incorporated by all requisite corporate action by reference in the Company, Offering Memorandum.
(ciii) the The Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action of the Companyfull right, (d) the Company has all requisite corporate power and authority to execute and deliver each of the Purchase Agree- ment, the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement Transaction Documents and to perform its obligations thereunder thereunder; and such executionall corporate action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and performance has the consummation of the transactions contemplated thereby have been duly and validly taken.
(iv) The Securities being issued on the date hereof have been duly authorized by all requisite corporate action and executed by the Company, (e) the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement have been duly executed and delivered by the Company, (f) the LLC has all requisite limited liability power and authority to execute and deliver the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite limited liability company action by the LLC, (g) the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement have been duly executed and delivered by the LLC, (I) when the Notes are authenticated by the Trustee in accordance with the provisions of manner provided in the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and issued and delivered and paid for by the Company to you against payment therefor in accordance with the terms of this the Purchase Agreement, registered holders the Securities will constitute valid and binding obligations of the Notes will be Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms.
(v) The shares of Common Stock initially issuable upon conversion of the Securities pursuant to the Indenture (the “Conversion Shares”) have been duly authorized and reserved for issuance and, when issued and delivered upon conversion of the Securities in accordance with the terms of the Indenture, will constitute be validly issued, fully paid and nonassessable and not be subject to any preemptive rights under the Delaware General Corporation Law, the Company’s charter or bylaws, to our knowledge, or any material contract to which the Company or any of its properties or assets is bound and will conform in all material respects to the description of the Common Stock contained or incorporated by reference in the Offering Memorandum.
(vi) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authentication thereof by the Trustee, constitutes a valid and binding obligation agreement of the Company enforceable against the Company in accordance with its terms.
(vii) The Purchase Agreement has been duly authorized, (II) when the Exchange Notes and the Private Exchange Notes, if any, are authenticated executed and delivered in exchange for the Notes in the manner contemplated by the Notes Company.
(viii) The Registration Rights AgreementAgreement has been duly authorized, registered holders of executed and delivered by the Exchange Notes Company and Private Exchange Notes will be entitled to the benefits of the Indenture and will constitute the constitutes a valid and binding obligations agreement of the Company enforceable against the Company in accordance with their terms, and (III) each of the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, and (IV) each of the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement constitutes a valid and binding obligation of the LLC, enforceable against the LLC in accordance with its terms, except, in each case, (x) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the rights and remedies of creditors generally and (y) such counsel need express no opinion concerning the enforceability of, or the enforceability under law under certain circumstances of, the indemnification provisions of Section 4 of the Notes Registration Rights Agreement or Section 5 of the Equity Registration Rights Agreement with respect to a liability where such indemnification is contrary to public policy;.
(5ix) assuming compliance by the Escrow Agent with the terms of the Escrow Agreement, the Escrow Agreement creates a valid perfected security interest in favor of the Trustee in all right, title and interest of the Company in and to the Escrow Account and the Collateral;
(6) the statements in the Offering Memorandum under the headings "Summary -- The Offering," "Description of the Units," "Description of the Notes," "Exchange Offer; Notes Registration Rights" and "Equity Registration and Other Rights," insofar as such statements purport to summarize certain provisions of the Units, the Notes, the Exchange Notes, the Private Exchange Notes, the Indenture, the Notes Registration Rights Agreement and the Equity Registration Rights Agreement, provide a fair summary of such provisions of such agreements and instruments;
(7) assuming the Securities are issued and sold under the circumstances contemplated by this Agreement and the representations and warranties of the Issuers and the Initial Purchasers set forth herein are true and correct, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated by the Purchase Agreement and the Offering Memorandum to register the Securities under the 1933 Act or to qualify the Indenture under the Trust Indenture Act;
(8) assuming the Company invests the net proceeds of the Offering as described under "Use of Proceeds" in the Final Offering Memorandum, neither the Company nor the LLC is an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940 (the "Investment Company Act") nor is the Company or the LLC otherwise subject to regulation or registration under the Investment Company Act. In forming the foregoing opinion, we are not relying on the availability of any exemption under Section 3(c)(1) or 3(c)(7) of the Investment Company Act;
(9) the statements in the Offering Memorandum under the caption "Tax Considerations -- United States" fairly “Description of Notes” and “Description of Capital Stock”, in each case insofar as such statements constitute matters of law or legal conclusions or summarize the terms of the Transaction Documents, have been reviewed by such counsel and are correct in all material respects.
(x) The statements set forth under the caption “Certain United States Federal tax consequences of acquiringIncome Tax Consequences”, owning and disposing insofar as they purport to describe provisions of the UnitsUnited States federal tax laws referred to therein, fairly and accurately summarize in all material respects, such laws referred to therein.
(xi) The execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby, including without limitation, the Notesissuance and sale of the Securities by the Company, will not conflict with or result in a breach or violation of any of the Exchange Notes terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties or assets of the Company is subject and which is filed as an Exhibit to any filing with the Commission incorporated by reference into the Offering Memorandum, nor will such actions result in any violation of the charter or by-laws of the Company, any applicable law, or any judgment, order or decree of any court or governmental agency or body specifically naming the Company or any of its properties or assets.
(xii) Except (i) for the registration of the Securities and the Holding Shares;Conversion Shares under the Act as contemplated by the Registration Rights Agreement, (ii) as may be expressly contemplated by the Transaction Documents and (iii) for such consents, approvals, authorizations, registrations or qualifications as may be required under applicable state securities laws or Blue Sky Laws or rules of the National Association of Securities Dealers, Inc. in connection with the purchase and distribution of the Securities by the Initial Purchasers (as to which no opinion is expressed herein) no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby.
(10xiii) To the LLC will be treated for federal income tax purposes best of such counsel’s knowledge and other than as set forth in the Offering Memorandum or incorporated by reference therein, there are no legal or governmental proceedings pending to which the Company is a partnership andparty or of which any property or asset of the Company is the subject that, based on singularly or in the aggregate, if determined adversely to the Company, would prevent or adversely affect the ability of the Company to perform its obligations under this Agreement.
(xiv) Assuming the accuracy of the representations, warranties and agreements of the Company and of the Initial Purchasers contained in this Agreement, no registration of the Securities under the Securities Act or qualification of the Indenture under the Trust Indenture Act is required in connection with the issuance and sale of the Securities by the Company and the initial resale of the Securities by the Initial Purchasers in the manner in which contemplated by this Agreement and the Offering Memorandum (it intends being understood that no opinion is expressed as to limit its business activities and monitor its "qualifying income" for purposes of Section 7704(c) any subsequent resale of the Internal Revenue Code Securities or the Underlying Common Stock).
(xv) The Company is not, and upon application of 1986the proceeds as described under the caption “Use of Proceeds” in the Offering Memorandum will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (amended, and the "Code"), it will not be classified as a publicly traded partnership that is treated as a corporation under section 7704(a) rules and regulations of the CodeCommission thereunder. In addition such Such counsel shall state also have furnished to the Representatives a written statement, addressed to the Initial Purchasers and dated such Closing Date, in form and substance satisfactory to the Representatives, to the effect that (x) such counsel has participated acted as counsel to the Company in conferences connection with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents preparation of the Offering Memorandum and related matters were discussed(y) based on such counsel’s examination of the Offering Memorandum and such counsel’s investigations made in connection with the preparation of the Offering Memorandum and “conferences with certain officers and employees of and with auditors for and counsel to the Company”, such counsel has no reason to believe that the Offering Memorandum, as of its date, contained, and although on the Closing Date, contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. The foregoing opinion and statement may be qualified by a statement to the effect that such counsel has not independently verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclauses (7) and (10) above)takes no responsibility therefor. In addition, on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon opinions of officers and other representatives of the Issuers), on the basis of the foregoing nothing has come to its attention to cause it to believe opinion may note that the Offering Memorandum at has been prepared in the date thereof or as of the Closing Time, contained or contains an untrue statement context of a material fact or omitted or omits to state Rule 144A transaction and not as part of a material fact necessary to make registration statement under the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been requested to Securities Act and does not make any comment contain all of the information that would be required in a registration statement under the Securities Act.
(e) Fish & ▇▇▇▇▇▇▇▇▇▇ P.C. shall have furnished to the Representatives such counsel’s written opinion, as patent counsel to the Company, addressed to the Initial Purchasers and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(f) Fish & Neave P.C. shall have furnished to the Representatives such counsel’s written opinion, as patent counsel to the Company, addressed to the Initial Purchasers and dated such Closing Dates, in form and in substance reasonably satisfactory to the Representatives.
(g) Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C. shall have furnished to the Representatives such counsel’s written opinion, as FDA regulatory counsel to the Company, addressed to the Initial Purchasers and dated such Closing Date, in form and substance reasonably satisfactory to the Representatives.
(h) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP shall have furnished to the Representatives such counsel’s written opinion as counsel for the Initial Purchasers, addressed to the Initial Purchasers and dated such Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for enabling them to pass upon such matters.
(i) At the financial statements, and the notes thereto and related schedules, (ii) other financial or statistical data found in or derivable from the financial, accounting or internal records time of the Issuers or (iii) any forward-looking or projected financial or statistical data relating to the Issuers, in each case, included in the Offering Memorandum). In rendering such opinion, such counsel (A) need not express any opinion with regard to the application execution of laws of any jurisdiction other than the Federal laws of the United States and the laws of the State of New York and (B) may rely as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Issuers and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitationthis Agreement, the Legal Opinion Accord of the ABA Section of Business Law (1991). References Representatives shall have received from Ernst & Young LLP a letter, addressed to the Offering Memorandum in this Section (a) include any supplement thereto prior to the Closing Time.
(b) At the Closing Time, the Initial Purchasers shall have received the opinion of Xavier, Bernardes, Braganca, Brazilian counsel to the Issuers, and dated as of the Closing Timesuch date, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchaser, Representatives (i) confirming that they are independent certified public accountants with respect to the effect that:
(1) Company within the Company has been duly organized and is a validly existing sociedade anonima in good standing under the laws meaning of the Federative Republic Securities Act and the Rules and Regulations thereunder and (ii) stating the conclusions and findings of Brazil, such firm with full corporate power respect to the financial statements and authority to own, lease and operate its assets and properties and conduct its business currently conducted and as described certain financial information contained in or incorporated by reference in the Offering Memorandum;.
(2j) On the authorizedClosing Date, issued the Representatives shall have received a letter (the “bring-down letter”) from Ernst & Young LLP addressed to the Initial Purchasers and outstanding capital stock dated such Closing Date confirming, 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 three business days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by its letter delivered to the Representatives concurrently with the execution of this Agreement pursuant to Section 6(g).
(k) The Company shall have furnished to the Representatives a certificate, dated such Closing Date, of its President and Chief Executive Officer or a Vice President and its Chief Financial Officer stating that (i) such officers have carefully examined the Offering Memorandum and, in their opinion, the Offering Memorandum, as of its date and such Closing Date, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (ii) since the date of the Offering Memorandum, no event has occurred that should have been set forth in a supplement or amendment to the Offering Memorandum, (iii) to the best of their knowledge after reasonable investigation, as of such Closing Date, the representations and warranties of the Company is in this Agreement are true and correct and the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date, and (iv) subsequent to the date of the most recent financial statements included in the Offering Memorandum there has been no material adverse change in the financial position or results of operation of the Company, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations, business or prospects of the Company, except as set forth in the Offering Memorandum under as of the subheading "Actual" under date hereof.
(l) The Company shall not have sustained since the caption "Capitalization" date of the latest audited financial statements included or incorporated by reference in the Offering Memorandum any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum (except that 8,700 additional shares ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company's redeemable preferred stock were subsequently issued, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii); , is, in the Company does not have any subsidiaries;
(a) judgment of the Company has Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the requisite corporate power and authority to issue, sell and deliver the Notes pursuant to the Purchase Agreement and the issuance, sale and or delivery of the Notes pursuant to Securities on the Purchase Agreement have been duly authorized by all requisite corporate action by the Company; (b) the Company has all requisite corporate power terms and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated in the Offering Memorandum.
(m) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body that would, as of such Closing Date, prevent the Notes Registration Rights Agreement issuance or sale of the Securities or the Underlying Securities or materially and such issuance adversely affect or potentially materially and delivery has been duly authorized by all requisite corporate action by adversely affect the business or operations of the Company; (c) and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of such Closing Date which would prevent the Company has issuance or sale of the requisite corporate power and authority to issue, sell and deliver the Common Stock pursuant to the Company-LLC Subscription Agreement and thSecurities or
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Conditions of the Initial Purchasers’ Obligations. The obligations obligation of the Initial Purchasers to purchase and pay for the Securities are Notes shall be subject to the continued accuracy, as of the Closing Time, of the representations and warranties of the Issuers herein contained, to the accuracy of the statements of the Issuers and officers of the Issuers made in any certificate pursuant to the provisions hereof, to the performance by each of the Issuers of its obligations hereunder, and to the following further conditions:
(a) At the Closing Time, the The Initial Purchasers shall have received an opinion in form and substance satisfactory to the opinion Initial Purchasers, dated the Closing Date, of Verner, Liipfert, Bernhard, ▇▇▇▇▇▇▇▇▇ and Hand, counsel for the Company, substantially in the form of Exhibit B hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, United States counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement, and such other related matters as the IssuersInitial Purchasers may require.
(c) The Initial Purchasers shall have received a letter or letters dated, dated as of respectively, the date hereof and the Closing TimeDate, from Ernst & Young LLP, in form and substance satisfactory to the Initial Purchasers.
(d) The representations and warranties of the Company contained in this Agreement shall be true and correct as of the date hereof and as of the Closing Date; the Company shall have complied with all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and subsequent to the date of the most recent financial statements in the Final Offering Circular, there shall not have occurred or become known any material adverse change in the business, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole, except as specifically set forth in the Final Offering Circular (a "MATERIAL ADVERSE CHANGE").
(e) The sale of the Notes by the Company hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date as of which information is given in the Final Offering Circular, except as spe- cifically described in the Final Offering Circular (both before and after giving effect to the transactions to occur on or before the Closing Date), none of the Company or any of its subsidiaries shall have incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business) that are material to the Company and its subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole, and, other than as specifically set forth in the Final Offering Circular, there shall not have been any change in the capital stock or long-term indebtedness of the Company or its subsidiaries that is material to the business, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole.
(g) Subsequent to the date as of which information is given in the Final Offering Circular, the conduct of the business and operations of the Company or any of its subsidiaries has not been interfered with by strike, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of the Company or any of its subsidiaries have not sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which could not reasonably be expected to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chairman and the Chief Financial Officer of the Company to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects as if made on and as of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, provided, however that if any such representation or warranty is already qualified by materiality, such representation or warranty, as so qualified, is true and correct in all respects;
(ii) At the Closing Date, since the date hereof or subsequent to the respective dates as of which information is given in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred or become known any event or events that could reasonably be expected to have, singly or in the aggregate, a Material Adverse Effect;
(iii) Subsequent to the respective dates as of which information is given in the Final Offering Circular, except in each case as specifically described in the Final Offering Circular, exclusive of any amendment or supplement thereto after the date hereof (both before and after giving effect to the Offering and the transactions contemplated thereby), none of the Company or any of its Subsidiaries has incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business) that are material to the Company and its subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole, and, other than as specifically set forth in the Final Offering Circular, there shall not have been any change in the capital stock or long-term indebtedness of the Company or its subsidiaries that is material to the business, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole;
(iv) Subsequent to the respective dates as of which information is given in the Final Offering Circular and exclusive of any amendment or supplement thereto after the date hereof, the conduct of the business and operations of the Company or any of its subsidiaries has not been interfered with by strike, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise specifically stated therein, the properties of the Company or any of its subsidiaries have not sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which could not reasonably be expected to have, singly or in the aggregate, a Material Adverse Effect; and
(v) The sale of the Notes by the Company hereunder has not been enjoined (temporarily or permanently).
(i) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company as they shall have heretofore reasonably requested from the Company. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, to the effect that:
(1) no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body in the United States of America or the State of New York is required for the execution and delivery by the . The Company and the LLC, as applicable, of the Purchase Agreement, the Equity Registration Rights Agreement, the Notes Registration Rights Agreement, the Agency Agreement, the Escrow Agreement, the Unit Agreement, the Company-LLC Subscription Agreement or the Indenture or for the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement, the issuance and delivery of the Exchange Notes or the Private Exchange Notes, if any, in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, or the consummation by the Company and the LLC, as applicable, of any of the transactions contemplated in such instruments and agreements, or the issuance, sale and delivery of the Holding Shares by the LLC pursuant to the Purchase Agreement (except for authorizations required under the securities or Blue Sky laws of certain jurisdictions, as to which we express no opinion) nor will such issuance, sale and delivery of the Securities shall furnish to the Initial Purchasers or the execution, delivery and performance such conformed copies of such instruments and agreements by the Company and the LLCopinions, as applicablecertificates, conflict withletters, or result in a violation of any of the terms or provisions of, any existing applicable United States Federal or New York State judgment, order or decree which is known to such counsel or any law, rule or regulation, in any such case, of any government, governmental instrumentality or court located in the United States having jurisdiction over the Company or any of its properties or assets, except that (a) the transactions contemplated by the Notes Registration Rights Agreement are subject, to the extent set forth therein, to the registration and other requirements of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and (b) the transactions contemplated by the Equity Registration Rights Agreement are subject, to the extent set forth therein, to the registration requirements of the Act;
(2) to our knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which the Company or the LLC is a party, or to which the property of the Company or the LLC is subject, before or brought by any court or governmental agency or body in the Federal courts of the United States or in any State court in the State of New York, which might reasonably be expected to have or result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation or performance by the Company or the LLC of its obligations under any of the Operative Documents;
(3) the execution, delivery and performance of the Operative Documents, the issuance by the Company of the Notes, the issuance by the LLC of the Holding Shares and the consummation of the transactions contemplated in the Operative Documents and compliance by the Company and the LLC with their respective obligations under the Operative Documents will not, whether with or without the giving of notice or lapse of time or both, (a) conflict with or constitute a breach of, or a default or otherwise cause or permit any holder of indebtedness of the Company to have a right to require the repurchase, redemption or repayment of any of such indebtedness of the Company or the LLC under or (b) result in the creation or imposition of any lien (other than liens contemplated by the Escrow Agreement), charge or encumbrance upon any property or assets of the Company or the LLC pursuant to any material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument, known to us, to which the Company or the LLC is a party or by which either of them may be bound, or to which any of the property or assets of the Company or the LLC is subject, or (c) result in any violation of the provisions of the LLC Agreement, or any applicable New York or Federal law, statute, rule, regulation, judgment, order, writ or decree, known to us, of any government, government instrumentality or court having jurisdiction over the Company or the LLC or any of their respective properties, assets or operations except in the case of (a), (b), or (c) above, such as would not, either singly or in the aggregate, have a Material Adverse Effect;
(4) the Notes are in the form contemplated by the Indenture and assuming that (a) the Company has been duly organized and is validly existing and in good standing under the laws of the Federative Republic of Brazil, (b) the Company has all requisite corporate power and authority to issue, sell and deliver the Notes and the issuance, sale and delivery of the Notes has been duly authorized by all requisite corporate action by the Company, (c) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action of the Company, (d) the Company has all requisite corporate power and authority to execute and deliver the Purchase Agree- ment, the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite corporate action by the Company, (e) the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement have been duly executed and delivered by the Company, (f) the LLC has all requisite limited liability power and authority to execute and deliver the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement and to perform its obligations thereunder and such execution, delivery and performance has been duly authorized by all requisite limited liability company action by the LLC, (g) the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement have been duly executed and delivered by the LLC, (I) when the Notes are authenticated by the Trustee in accordance with the provisions of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee) and delivered and paid for in accordance with the terms of this Agreement, registered holders of the Notes will be entitled to the benefits of the Indenture and the Indenture will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, (II) when the Exchange Notes and the Private Exchange Notes, if any, are authenticated and delivered in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement, registered holders of the Exchange Notes and Private Exchange Notes will be entitled to the benefits of the Indenture and will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, and (III) each of the Unit Agreement, the Indenture, the Escrow Agreement, the Agency Agreement, the Notes Registration Rights Agreement, the Equity Registration Rights Agreement and the Company-LLC Subscription Agreement constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, and (IV) each of the Unit Agreement, the Company-LLC Subscription Agreement and the Equity Registration Rights Agreement constitutes a valid and binding obligation of the LLC, enforceable against the LLC in accordance with its terms, except, in each case, (x) as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws affecting the rights and remedies of creditors generally and (y) such counsel need express no opinion concerning the enforceability of, or the enforceability under law under certain circumstances of, the indemnification provisions of Section 4 of the Notes Registration Rights Agreement or Section 5 of the Equity Registration Rights Agreement with respect to a liability where such indemnification is contrary to public policy;
(5) assuming compliance by the Escrow Agent with the terms of the Escrow Agreement, the Escrow Agreement creates a valid perfected security interest in favor of the Trustee in all right, title and interest of the Company in and to the Escrow Account and the Collateral;
(6) the statements in the Offering Memorandum under the headings "Summary -- The Offering," "Description of the Units," "Description of the Notes," "Exchange Offer; Notes Registration Rights" and "Equity Registration and Other Rights," insofar as such statements purport to summarize certain provisions of the Units, the Notes, the Exchange Notes, the Private Exchange Notes, the Indenture, the Notes Registration Rights Agreement and the Equity Registration Rights Agreement, provide a fair summary of such provisions of such agreements and instruments;
(7) assuming the Securities are issued and sold under the circumstances contemplated by this Agreement and the representations and warranties of the Issuers and the Initial Purchasers set forth herein are true and correct, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers and to each Subsequent Purchaser in the manner contemplated by the Purchase Agreement and the Offering Memorandum to register the Securities under the 1933 Act or to qualify the Indenture under the Trust Indenture Act;
(8) assuming the Company invests the net proceeds of the Offering as described under "Use of Proceeds" in the Final Offering Memorandum, neither the Company nor the LLC is an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940 (the "Investment Company Act") nor is the Company or the LLC otherwise subject to regulation or registration under the Investment Company Act. In forming the foregoing opinion, we are not relying on the availability of any exemption under Section 3(c)(1) or 3(c)(7) of the Investment Company Act;
(9) the statements in the Offering Memorandum under the caption "Tax Considerations -- United States" fairly summarize the material United States Federal tax consequences of acquiring, owning and disposing of the Units, the Notes, the Exchange Notes and the Holding Shares;
(10) the LLC will be treated for federal income tax purposes as a partnership and, based on the manner in which it intends to limit its business activities and monitor its "qualifying income" for purposes of Section 7704(c) of the Internal Revenue Code of 1986, as amended (the "Code"), it will not be classified as a publicly traded partnership that is treated as a corporation under section 7704(a) of the Code. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclauses (7) and (10) above), on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon opinions of officers and other representatives of the Issuers), on the basis of the foregoing nothing has come to its attention to cause it to believe that the Offering Memorandum at the date thereof or as of the Closing Time, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel has not been requested to and does not make any comment with respect to (i) the financial statements, and the notes thereto and related schedules, (ii) other financial or statistical data found documents and instruments in or derivable from the financial, accounting or internal records of the Issuers or (iii) any forward-looking or projected financial or statistical data relating to the Issuers, in each case, included in the Offering Memorandum). In rendering such opinion, such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal laws of the United States and the laws of the State of New York and (B) may rely quantities as to matters of fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers of the Issuers and public officials. Such opinion shall not state that it is to be governed or qualified by, or that it is otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). References to the Offering Memorandum in this Section (a) include any supplement thereto prior to the Closing Time.
(b) At the Closing Time, the Initial Purchasers shall have received the opinion of Xavier, Bernardes, Braganca, Brazilian counsel to the Issuers, dated as of the Closing Time, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchaser, to the effect that:
(1) the Company has been duly organized and is a validly existing sociedade anonima in good standing under the laws of the Federative Republic of Brazil, with full corporate power and authority to own, lease and operate its assets and properties and conduct its business currently conducted and as described in the Offering Memorandum;
(2) the authorized, issued and outstanding capital stock of the Company is as set forth in the Offering Memorandum under the subheading "Actual" under the caption "Capitalization" (except that 8,700 additional shares of the Company's redeemable preferred stock were subsequently issued); the Company does not have any subsidiaries;
(a) the Company has the requisite corporate power and authority to issue, sell and deliver the Notes pursuant to the Purchase Agreement and the issuance, sale and delivery of the Notes pursuant to the Purchase Agreement have been duly authorized by all requisite corporate action by the Company; (b) the Company has all requisite corporate power and authority to issue and deliver the Exchange Notes and the Private Exchange Notes in exchange for the Notes in the manner contemplated by the Notes Registration Rights Agreement and such issuance and delivery has been duly authorized by all requisite corporate action by the Company; (c) the Company has the requisite corporate power and authority to issue, sell and deliver the Common Stock pursuant to the Company-LLC Subscription Agreement and threasonably request.
Appears in 1 contract