Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase and pay for the Securities shall, in its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date: (a) On the Closing Date, the Initial Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Akin, Gump, Strauss, Haue▇ & ▇eld, ▇.L.P., counsel for the Company and the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchaser, to the effect that: (i) Each of the Company and the Subsidiary Guarantors is duly incorporated, validly existing and in good standing under the laws of its respective jurisdiction of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Circular. Each of the Company and the Subsidiary Guarantors is duly qualified as a foreign corporation and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect. (ii) As of the date thereof, the Company has the authorized, issued and outstanding capitalization set forth in the Final Circular; all of the outstanding shares of capital stock of the Subsidiary Guarantors are owned, directly or indirectly, by the Company, and, to the knowledge of such counsel and except as set forth in the Final Circular, free and clear of all liens, encumbrances, equities and claims or restrictions on transferability or voting. (iii) Except as set forth in the Final Circular, to the knowledge of such counsel (A) no options, warrants or other rights to purchase from the Company or any Subsidiary Guarantors shares of capital stock in the Company or any Subsidiary Guarantors are outstanding, (B) no agreements or other obligations of the Company or any Subsidiary Guarantors to issue, or other rights to cause the Company or any Subsidiary Guarantors to convert, any obligation into, or exchange any securities for, shares of capital stock in the Company or any Subsidiary Guarantors are outstanding and (C) no holder of securities of the Company or any Subsidiary Guarantors is entitled to have such securities registered under a registration statement filed by the Company or any Subsidiary Guarantors under the Act with respect to the Securities or the Warrant Shares. (v) Each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Guarantees. The Guarantees endorsed on each Senior Note have been duly and validly authorized and executed by each of the Subsidiary Guarantors and, when the Senior Notes are authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute the valid and legally binding obligations of each of the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (vi) Each of the Company and each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its respective obligations under the Indenture; the Indenture is in sufficient form for qualification under the TIA; the Indenture has been duly and validly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors and (assuming the due authorization, execution and delivery thereof by the Trustee), constitutes the valid and legally binding agreement of the Company and each of the Subsidiary Guarantors, enforceable against the Company and the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (vii) Each of the Company and each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreements; the Registration Rights Agreements have been duly and validly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors (assuming the due authorization, execution and delivery thereof by the Initial Purchaser), constitute the valid and legally binding agreement of the Company and each such Subsidiary Guarantors, enforceable against the Company and each such Subsidiary Guarantors in accordance with their terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now (viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrant Agreement. The Warrant Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (ix) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrants and the Additional Warrants. The Warrants and the Additional Warrants have been duly and validly authorized and executed by the Company and when countersigned by the Warrant Agent in accordance with the provisions of the Warrant Agreement and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will have been duly issued and delivered and will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Warrant Agreement, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (x) When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants and upon exercise of the Additional Warrants, the Warrant Shares and the Additional Warrant Shares, as the case may be, will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights. The Warrant Shares and the Additional Warrant Shares, as the case may be, have been duly reserved for issuance in accordance with the terms of the Warrants, the Warrant Agreement and the Additional Warrants, as the case may be. (xi) Each of the Company and the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; the execution, delivery and performance of this Agreement by the Company and the Subsidiary Guarantors and the consummation by the Company and the Subsidiary Guarantors of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company and each of the Subsidiary Guarantors. This Agreement has been duly executed and delivered by the Company and the Subsidiary Guarantors. (xii) The Indenture, the Senior Notes, the Guarantees, the Warrants, the Additional Warrants, the Warrant Shares, the Common Stock, the Registration Rights Agreements and the Warrant Agreement conform in all material respects to the descriptions thereof contained in the Final Circular. (xiii) To the knowledge of such counsel, no legal or governmental proceedings are pending or threatened to which any of the Company or any of its Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary is subject which, if determined adversely to the Company or the Subsidiary, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the other transactions described in the Final Circular under the caption "Use of Proceeds." (xiv) The execution and delivery of the Exchange Notes and the Private Exchange Notes by the Company have been duly authorized by all necessary corporate action of the Company, and when the Exchange Notes and Private Exchange Notes have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Exchange Notes and the Private Exchange Notes will constitute the legal, valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (xv) The Guarantees to be endorsed on each of the Exchange Notes and the Private Exchange Notes by the Subsidiary Guarantors have been duly authorized by all necessary corporate action of the Subsidiary Guarantors, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Company and the Subsidiary Guarantors in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Guarantees will constitute the legal, valid, binding and enforceable obligations of the Subsidiary Guarantors, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (xvi) The execution and delivery of this Agreement, the Indenture, the Warrant Agreement and the Registration Rights Agreements and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchaser) will not, after giving effect to the repayment of indebtedness to Bank One, conflict with or constitute or result in a breach or violation of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any indenture, mortgage, (xvii) To the knowledge of such counsel, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company and the Subsidiary Guarantors of the Securities to the Initial Purchaser or the other transactions contemplated hereby. (xviii) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchaser as contemplated by this Agreement and the Final Circular or in connection with the initial resale of the Securities by the Initial Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) that the purchasers who buy such Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act ("QIBs" or "Qualified Institutional Buyers"), accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act ("Accredited Investors"), or foreign purchasers (as defined in Section 8), (ii) the accuracy of the Initial Purchaser's representations in Section 8 and those of the Company and the Subsidiary Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchaser of the agreements set forth in Section 8 hereof. (xix) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. (xx) Neither the Company nor any of the Subsidiary Guarantors is an "investment company" or "promotor" or "principal underwriter" for an "investment company" as such terms are defined in the Investment Company Act of 1946, as amended, and the rules and regulations thereunder.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- of the Initial Purchaser to purchase and pay for the Securities shall, in its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Akin▇▇▇▇▇▇, Gump▇'▇▇▇▇▇▇▇, Strauss, Haue▇▇▇▇▇▇▇▇ & ▇eld▇▇▇▇▇, ▇.L.P.LLP, counsel for the Company and the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchaser, to the effect that:
(i) Each of the Company and Company, the Subsidiary Guarantors and the Founding Companies is duly incorporated, validly existing and in good standing under the laws of its respective jurisdiction of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Circular. Each of the Company and Company, the Subsidiary Guarantors and the Founding Companies is duly qualified as a foreign corporation and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect.
(ii) To the knowledge of such counsel, each of the Company and the Subsidiary Guarantors hold all material licenses, certificates and permits from governmental authorities necessary for the conduct of its business as described in the Final Circular. Other than the Subsidiary Guarantors, there is no other subsidiary of the Company.
(iii) As of the date thereof, the Company has and the Subsidiary Guarantors have the authorized, issued and outstanding capitalization set forth in the Final Circular; all of the outstanding shares of capital stock of the Subsidiary Guarantors have been duly and validly authorized and issued and are owned, fully paid and non-assessable and are directly or indirectly, owned by the Company, and, to the knowledge of such counsel and except as set forth in the Final Circular, free and clear of all liens, encumbrances, equities and claims or restrictions on transferability or voting.
(iiiiv) Except as set forth in the Final Circular, to the knowledge of such counsel (A) no options, warrants or other rights to purchase from the Company or any Subsidiary Guarantors shares of capital stock in the Company or any Subsidiary Guarantors are outstanding, (B) no agreements or other obligations of the Company or any Subsidiary Guarantors to issue, or other rights to cause the Company or any Subsidiary Guarantors to convert, any obligation into, or exchange any securities for, shares of capital stock in the Company or any Subsidiary Guarantors are outstanding and (C) no holder of securities of the Company or any Subsidiary Guarantors is entitled to have such securities registered under a registration statement filed by the Company or any Subsidiary Guarantors under the Act with respect to the Securities or the Warrant Shares.
(v) Each merger contemplated by the Acquisition Agreements has become effective pursuant to the laws of the jurisdiction of organization of each applicable Founding Company and corresponding Acquisition Subsidiary and the Company is the sole record owner of the shares of the equity of each surviving corporation of each such merger. The transactions contemplated in the Acquisition Agreement between Call Points, Inc. and Call Points Acquisition Corporation have been consummated.
(vi) The Senior Notes have been duly and validly authorized and executed by the Company and when delivered by the Company (assuming the due authorization, execution, and delivery of the Indenture by the Trustee and the due authentication of the Senior Notes by the Trustee in accordance with the Indenture) and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute the valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance and transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(vii) Each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Guarantees. The Guarantees endorsed on each Senior Note have been duly and validly authorized and executed by each of the Subsidiary Guarantors and, when the Senior Notes are authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute the valid and legally binding obligations of each of the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance and transfer, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(viviii) Each of the Company and each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its respective obligations under the Indenture; the Indenture is in sufficient form for qualification under the TIA; the Indenture has been duly and validly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors and (assuming the due authorization, execution and delivery thereof by the Trustee), constitutes the valid and legally binding agreement of the Company and each of the Subsidiary Guarantors, enforceable against the Company and the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance and transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(viiix) Each of the Company and each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreements; the Registration Rights Agreements have been duly and validly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors (assuming the due authorization, execution and delivery thereof by the Initial Purchaser), constitute the valid and legally binding agreement of the Company and each such Subsidiary Guarantors, enforceable against the Company and each such Subsidiary Guarantors in accordance with their terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance and transfer, reorganization, moratorium or other similar laws nownow or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought, and except that any agreement for indemnification contained therein may be contrary to public policy as to which we express no opinion.
(viiix) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrant Agreement. The Warrant Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance and transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought, and except that any agreement for indemnification contained therein may be contrary to public policy as to which we express no opinion.
(ixxi) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrants and the Additional Warrants. The Warrants and the Additional Warrants have been duly and validly authorized and executed by the Company and when countersigned by the Warrant Agent in accordance with the provisions of the Warrant Agreement and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will have been duly issued and delivered and will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Warrant Agreement, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance and transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(xxii) When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants and upon exercise of the Additional Warrants, the Warrant Shares and the Additional Warrant Shares, as the case may be, will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights. The Warrant Shares and the Additional Warrant Shares, as the case may be, have been duly reserved for issuance in accordance with the terms of the Warrants, the Warrant Agreement and the Additional Warrants, as the case may be.
(xixiii) Each of the Company and the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; the execution, delivery and performance of this Agreement by each of the Company and the Subsidiary Guarantors and the consummation by each of the Company and the Subsidiary Guarantors of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of each of the Company and each of the Subsidiary Guarantors. This Agreement has been duly executed and delivered by each of the Company and the Subsidiary Guarantors.
(xiixiv) The Indenture, the Senior Notes, the Guarantees, the Warrants, the Additional Warrants, the Warrant Shares, the Common Stock, the Registration Rights Agreements and the Warrant Agreement conform in all material respects to the descriptions thereof contained in the Final Circular. The holders of the outstanding shares of capital stock of the Company are not entitled to any preemptive or other rights to subscribe for the Securities, pursuant to Massachusetts law or the Company's charter, and to the knowledge of such counsel after due inquiry, such counsel is not aware of the existence of such rights pursuant to any agreement.
(xiiixv) To the knowledge of such counselcounsel except as described in the Final Circular, no legal or governmental proceedings are pending or threatened to which any of the Company or any of its Subsidiaries subsidiaries is a party or to which the property or assets of the Company or any Subsidiary subsidiary is subject which, if determined adversely to the Company or the Subsidiarysubsidiary, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the other transactions described in the Final Circular under the caption "Use of Proceeds."
(xivxvi) The execution and delivery of the Exchange Notes and the Private Exchange Notes by the Company have been duly authorized by all necessary corporate action of the Company, and when the Exchange Notes and Private Exchange Notes have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Exchange Notes and the Private Exchange Notes will constitute the legal, valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance and transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(xvxvii) The Guarantees to be endorsed on each of the Exchange Notes and the Private Exchange Notes by the Subsidiary Guarantors have been duly authorized by all necessary corporate action of the Subsidiary Guarantors, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Company and the Subsidiary Guarantors in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Guarantees will constitute the legal, valid, binding and enforceable obligations of the Subsidiary Guarantors, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance and transfer, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(xvixviii) The execution and delivery of this Agreement, the Indenture, the Warrant Agreement and the Registration Rights Agreements Agreements, as applicable, and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchaser) will not, after giving effect to the repayment of indebtedness to Bank One, not conflict with or constitute or result in a breach or violation of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any indenture, mortgage,, deed of trust, loan agreement, note, lease, license, franchise agreement, permit, certificate, contract or other agreement or instrument known to such counsel (including in any event any of the foregoing which have been filed by the Company with the Commission) to which any of the Company or the Subsidiary Guarantors is a party or to which any of them or their respective properties or assets is subject, except for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws of any of the Company or the Subsidiary Guarantors, or (iii) (assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 9 hereof) any statute, judgment, decree, order, rule or regulation known to such counsel to be applicable to the Company or the Subsidiary Guarantors or any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(xviixix) To the knowledge of such counsel, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company and the Subsidiary Guarantors of the Securities to the Initial Purchaser or the other transactions contemplated hereby.
(xviiixx) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchaser as contemplated by this Agreement and the Final Circular or in connection with the initial resale of the Securities by the Initial Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) that the purchasers who buy such Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act ("QIBs" or "Qualified Institutional Buyers"), accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act ("Accredited Investors"), or foreign purchasers (as defined in Section 8), (ii) the accuracy of the Initial Purchaser's representations in Section 8 and those of the Company and the Subsidiary Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchaser of the agreements set forth in Section 8 hereof.
(xix) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
(xx) Neither the Company nor any of the Subsidiary Guarantors is an "investment company" or "promotor" or "principal underwriter" for an "investment company" as such terms are defined in the Investment Company Act of 1946, as amended, and the rules and regulations thereunder.
Appears in 1 contract
Sources: Purchase Agreement (Call Points Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase and pay for the Securities shall, in its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Akin, Gump, Strauss, Haue▇▇▇▇▇▇▇▇ & ▇eld, ▇.L.P.▇▇▇▇▇▇, counsel for the Company and the Subsidiary GuarantorsCompany, in form and substance satisfactory to counsel for the Initial Purchaser, substantially to the effect that:
(i) Each of the Company and the Subsidiary Guarantors is duly incorporatedincorporated or formed, as the case may be, validly existing and in good standing under the laws of its respective jurisdiction of incorporation or formation and has all requisite corporate or partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Final CircularMemorandum. Each of the Company and the Subsidiary Guarantors is duly qualified as a foreign corporation corporation, limited liability company or limited partnership and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires jurisdictions set forth below such qualificationGuarantor's name on Schedule A attached to such opinion, except where such jurisdictions in which the failure to be so qualified would not, individually or in the aggregate, not be reasonably expected to have a Material Adverse Effect.
(ii) As of the date thereof, the The Company has the authorized, authorized and issued and outstanding capitalization capital stock (or other equity securities) set forth in the Final Circular; Memorandum. To the knowledge of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, the Guarantors constitute all the subsidiaries of the outstanding shares of capital stock of Company and the Subsidiary Guarantors are ownedCompany, directly or indirectly, by will own one hundred percent of the Companyissued and outstanding stock, andpartnership, to or membership interests (or other equity securities) of each of the knowledge Guarantors (except that for the Guarantors listed on Schedule 3 hereto the Company will directly or indirectly own at least 98% of the membership interests in such Guarantors and the remaining membership interest in each of such counsel and except as set forth in the Final CircularGuarantors will be indirectly owned by ▇▇▇▇ ▇. ▇▇▇▇▇), free and clear of all security interests perfected, or otherwise, and free and clear of all other liens, encumbrances, equities and claims or restrictions on transferability or voting.voting in each case other than liens securing the obligations of the Company and the Guarantors under the Credit Agreement and obligations secured by pledge of the capital stock of CMB II, Inc., ▇▇ ▇▇, Inc., St. ▇▇▇▇▇ Newspapers, Inc. and NCR, II, Inc. All of the outstanding shares of capital stock, partnership or membership interests (or other equity securities) of the Company and the Guarantors have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights;
(iii) Except as set forth in the Final CircularMemorandum, to the knowledge of such counsel (A) no options, warrants or other rights to purchase from the Company or any Subsidiary Guarantors Guarantor shares of capital stock or ownership interests in the Company or any Subsidiary Guarantors Guarantor are outstandingoutstanding and, (B) no agreements or other obligations of the Company or any Subsidiary Guarantors Guarantor to issue, or other rights to cause the Company or any Subsidiary Guarantors Guarantor to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company or any Subsidiary Guarantors Guarantor are outstanding and (C) no holder of securities of the Company or any Subsidiary Guarantors is entitled to have such securities registered under a registration statement filed by the Company or any Subsidiary Guarantors under the Act with respect to the Securities or the Warrant Sharesoutstanding.
(viv) Each of the Subsidiary Guarantors The Company and each Guarantor has all requisite corporate power and authority to executecorporate, deliver and perform its obligations under the Guarantees. The Guarantees endorsed on each Senior Note have been duly and validly authorized and executed by each of the Subsidiary Guarantors and, when the Senior Notes are authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute the valid and legally binding obligations of each of the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium company or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(vi) Each of the Company and each of the Subsidiary Guarantors has all requisite corporate partnership power and authority to execute, deliver and perform its respective obligations under this Agreement, the Indenture; , the Notes, the Registration Rights Agreement, the Exchange Notes and the Private Exchange Notes, the Unit Agreement, the Appreciation Notes Indenture, the Appreciation Notes, the Appreciation Notes Registration Rights Agreement, the Appreciation Exchange Notes and the Private Appreciation Exchange Notes, and the Indenture is in sufficient form for qualification under the TIA; the and Appreciation Notes Indenture has have been duly and validly authorizedauthorized by the Company and each Guarantor.
(v) The Global Note, the Global Appreciation Note and each other Note and Appreciation Note have been duly and validly authorized by the Company and authorized and duly executed and delivered by the Company and each of Guarantor.
(vi) The Exchange Notes, the Subsidiary Guarantors Private Exchange Notes, the Appreciation Exchange Notes and (assuming the due authorization, execution Private Appreciation Exchange Notes have been duly and delivery thereof validly authorized by the Trustee), constitutes the valid and legally binding agreement of the Company and each of the Subsidiary Guarantors, enforceable against the Company and the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtGuarantor.
(vii) Each of The Unit Agreement has been duly and validly authorized by the Company.
(viii) The Units have been duly and validly authorized by the Company.
(ix) The Company and each of the Subsidiary Guarantors Guarantor has all requisite corporate corporate, company or partnership power and authority to execute, deliver and perform its obligations under each of the Registration Rights Agreements; Agreement and the Appreciation Notes Registration Rights Agreements have been duly and validly authorized, executed and delivered by the Company Agreement and each of the Subsidiary Guarantors (assuming Registration Rights Agreement and the due authorization, execution and delivery thereof by the Initial Purchaser), constitute the valid and legally binding agreement of the Company and each such Subsidiary Guarantors, enforceable against the Company and each such Subsidiary Guarantors in accordance with their terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
(viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrant Agreement. The Warrant Appreciation Notes Registration Rights Agreement has been duly and validly authorized, executed and delivered authorized by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(ix) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrants and the Additional Warrants. The Warrants and the Additional Warrants have been duly and validly authorized and executed by the Company and when countersigned by the Warrant Agent in accordance with the provisions of the Warrant Agreement and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will have been duly issued and delivered and will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Warrant Agreement, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughteach Guarantor.
(x) When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants and upon exercise of the Additional Warrants, the Warrant Shares and the Additional Warrant Shares, as the case may be, will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights. The Warrant Shares and the Additional Warrant Shares, as the case may be, have been duly reserved for issuance in accordance with the terms of the Warrants, the Warrant Agreement and the Additional Warrants, as the case may be.
(xi) Each of the Company and the Subsidiary Guarantors each Guarantor has all requisite corporate corporate, company or partnership power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; the execution, delivery and performance of this Agreement by the Company and the Subsidiary Guarantors and the consummation by the Company and the Subsidiary Guarantors each Guarantor of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company and each of the Subsidiary Guarantors. This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor.
(xi) Each of the Subsidiary GuarantorsGuarantors has all requisite corporate, company or partnership power and authority to execute, deliver and perform its obligations under its respective Guarantee. Each Guarantee issued by a Guarantor has been duly and validly authorized, executed and delivered by the applicable Guarantor.
(xii) The Indenture, the Senior Notes, the Guarantees, the Warrants, the Additional Warrants, the Warrant Shares, the Common Stock, the Registration Rights Agreements and the Warrant Agreement conform in all material respects to the descriptions thereof contained Except as disclosed in the Final Circular.
(xiii) To the knowledge of such counselMemorandum, no legal or governmental proceedings are pending or or, to the knowledge of such counsel, threatened to which any of the Company or any of its Subsidiaries the Guarantors is a party or to which the property or assets of the Company or any Subsidiary the Guarantors is subject before or brought by any court, arbitrator or governmental agency or body which, if determined adversely to the Company or the SubsidiaryGuarantors, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the other transactions described in the Final Circular under Memorandum.
(xiii) None of the caption "Use Company or any Guarantor is (i) in violation of Proceedsits certificate of incorporation or bylaws or operating agreement or partnership agreement (or similar organizational document) or (ii) to the knowledge of such counsel, in breach or violation of any judgment, decree or order of any court, arbitrator or governmental body, agency or authority applicable to any of them or any of their respective properties or assets."
(xiv) The execution and delivery of this Agreement, the Exchange Indenture, the Registration Rights Agreement, the Unit Agreement, the Appreciation Notes Indenture and the Private Exchange Appreciation Notes Registration Rights Agreement and the Guarantees and the closing of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchaser) will not conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any Contract known to such counsel, (ii) the certificate of incorporation or bylaws or operating agreement or partnership agreement (or similar organizational document) of the Company or any Guarantor, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws any statute, judgment, decree, order, rule or regulation of the Commonwealth of Virginia or of the federal government of the United States (other than the Communications Act or FCC Rules (as defined in Section 7(c)(i) hereof) and securities laws as to each of which such counsel need not express any opinion) which, in such counsel's experience, is normally applicable both to general business corporations or limited liability companies or limited partnerships which are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum.
(xv) To the knowledge of such counsel, the Company and each of the Guarantors possess all Permits presently required or necessary, under the laws of the Commonwealth of Virginia and the federal laws of the United States (except for securities laws, the Communications Act and the FCC Rules) to own or lease, as the case may be, and to operate its respective properties and to carry on its respective businesses as now or proposed to be conducted as described in the Preliminary Memorandum and the Final Memorandum, except where the failure to obtain such Permits would not, individually or in the aggregate, have a Material Adverse Effect; each of the Company and the Guarantors has fulfilled and performed all of its obligations with respect to such Permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Permit except where such revocation, termination or impairment would not, individually or in the aggregate, have a Material Adverse Effect; and none of the Company or the Guarantors has received any notice of any proceeding relating to revocation or modification of any such Permit, except as described in the Final Memorandum and except where such revocation or modification would not, individually or in the aggregate, have a Material Adverse Effect.
(xvi) Lien searches performed with respect to the Company and the Guarantors in connection with the Credit Agreement and as described in Exhibits to the Credit Agreement, disclose that as of September 30, 1997 the real and personal property of the Company described in the Memorandum were free and clear of all recorded liens, charges, encumbrances or restrictions, except as therein described and as described in the Memorandum or to the extent that the failure to have such title or the existence of such liens, charges, encumbrances or restrictions would not, individually or in the aggregate, have a Material Adverse Effect. At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall additionally state that it has participated in conferences with officers and other representatives of the Company and the Guarantors, representatives of the independent public accountants for the Company, representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum, no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading, it being understood that such firm expresses no opinion with respect to any of the financial statements (actual, summary, selected or pro-forma) outlined therein or the related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum or any information therein concerning or furnished in writing by the Initial Purchaser for inclusion therein. In rendering such opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass on such matters. The opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ described in this Section shall be rendered to the Initial Purchaser at the request of the Company and shall so state therein. If requested by the Trustee, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall allow the Trustee to rely on its opinion and shall expressly so state. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, in form and substance satisfactory to counsel for the Initial Purchaser, substantially to the effect that:
(i) Except as set forth in the Final Memorandum, to the knowledge of such counsel (A) no options, warrants or other rights to purchase from the Company or any Guarantor shares of capital stock or ownership interests in the Company or any Guarantor are outstanding, (B) no agreements or other obligations of the Company or any Guarantor to issue, or other rights to cause the Company or any Guarantor to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company or any Guarantor are outstanding and (C) no holder of securities of or equity interests in the Company or any Guarantor is entitled to have such securities registered under a registration statement filed by the Company have been duly authorized by all necessary corporate action of and the Company, and Guarantors pursuant to the Registration Rights Agreement.
(ii) The Indenture is in sufficient form for qualification under the TIA; the Indenture when the Exchange Notes and Private Exchange Notes have been duly executed and delivered by the Company and each Guarantor (assuming the due authorization, execution and delivery thereof by the Company, each Guarantor and the Trustee), will constitute the valid and legally binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except that the enforcement thereof may be subject to (A) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(iii) The Appreciation Notes Indenture is in sufficient form for qualification under the TIA; the Appreciation Notes Indenture when duly executed and delivered by the Company and each Guarantor (assuming the due authorization, execution and delivery thereof by the Company, each Guarantor and the Appreciation Notes Trustee), will constitute the valid and legally binding agreement of the Company and each Guarantor, enforceable against the Company and each Guarantor in accordance with its terms, except that the enforcement thereof may be subject to (A) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other similar laws now or hereafter in effect relating to creditors' rights generally and (B) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(iv) The Global Note (as such term is defined in the Indenture) and each other Note to be delivered on the Closing Date are in the form contemplated by the Indenture. The Global Note and each such other Note when duly executed and delivered by the Company and when paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the Registration Rights Agreement due authorization, execution and delivery of the Indenture by the Company, each Guarantor and the Indenture, Trustee and assuming due authentication and delivery of the Notes by the TrusteeTrustee in accordance with the Indenture), the Exchange Notes and the Private Exchange Notes will constitute the legal, valid, valid and legally binding and enforceable obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or and other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(xvv) The Guarantees to be endorsed on each of the Exchange Notes and the Private Exchange Notes by the Subsidiary Guarantors have been duly authorized by all necessary corporate action of the Subsidiary Guarantors, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Company and the Subsidiary Guarantors in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Guarantees will constitute the legal, valid, binding and enforceable obligations of the Subsidiary Guarantors, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(xvi) The execution and delivery of this Agreement, the Indenture, the Warrant Agreement and the Registration Rights Agreements and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchaser) will not, after giving effect to the repayment of indebtedness to Bank One, conflict with or constitute or result in a breach or violation of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any indenture, mortgage,
(xvii) To the knowledge of such counsel, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company and the Subsidiary Guarantors of the Securities to the Initial Purchaser or the other transactions contemplated hereby.
(xviii) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchaser as contemplated by this Agreement and the Final Circular or in connection with the initial resale of the Securities by the Initial Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer Global Appreciation Note (as such term is defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) that the purchasers who buy such Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act ("QIBs" or "Qualified Institutional Buyers"), accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act ("Accredited Investors"), or foreign purchasers (as defined in Section 8), (ii) the accuracy of the Initial Purchaser's representations in Section 8 and those of the Company and the Subsidiary Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchaser of the agreements set forth in Section 8 hereof.
(xix) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
(xx) Neither the Company nor any of the Subsidiary Guarantors is an "investment company" or "promotor" or "principal underwriter" for an "investment company" as such terms are defined in the Investment Company Act of 1946, as amended, and the rules and regulations thereunder.Appreciati
Appears in 1 contract
Sources: Purchase Agreement (Central Michigan Distribution Co Lp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities shall, in its their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial PurchaserPurchasers, of Akin, Gump, Strauss, Haue▇▇▇▇▇▇▇▇ & ▇eld, ▇.L.P.▇▇▇▇ LLP, counsel for the Company and the Subsidiary GuarantorsCompany, in form and substance satisfactory to counsel for the Initial PurchaserPurchasers, to the effect that:
(i1) Each of the Company and the Subsidiary Guarantors is duly incorporated, validly existing and in good standing under the laws of its respective jurisdiction of incorporation and has all requisite corporate or partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Final CircularMemorandum. Each of the Company and the Subsidiary Guarantors is duly qualified as a foreign corporation or limited partnership and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect.
(ii2) As of Giving effect to the date thereofTransactions, the Company has the authorizedauthorized capitalization, the issued and outstanding capitalization preferred stock and, to the knowledge of such counsel, the issued and outstanding common stock, in each case as set forth in the Final Circular; all on a schedule attached to such opinion. All of the outstanding shares of capital stock of the Subsidiary Guarantors are owned, directly or indirectly, by the Company, free and clear of all perfected security interests and, to the knowledge of such counsel and except as set forth in the Final Circularcounsel, free and clear of all other liens, encumbrances, equities and claims or restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of certain jurisdictions and other than the security interests granted to the agent for the benefit of the lenders under the Credit Agreement) or voting.
(iii3) Except as set forth in the Final Circular, to To the knowledge of such counsel counsel, (A) except as set forth on Schedule V hereto, no options, warrants or other rights to purchase from the Company or any Subsidiary Guarantors shares of capital stock or ownership interests in the Company or any Subsidiary Guarantors are outstanding, (B) except as set forth on Schedule V hereto, no agreements or other obligations of the Company or any Subsidiary Guarantors to issue, or other rights to cause the Company or any Subsidiary Guarantors to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company or any Subsidiary Guarantors are outstanding and and, (C) except as set forth on Schedule VII hereto, no holder of securities of the Company or any Subsidiary Guarantors (other than the Registrable Notes) is entitled to have such securities registered under a registration statement filed by the Company or any Subsidiary Guarantors under the Act with respect pursuant to the Securities or the Warrant SharesRegistration Rights Agreement.
(v4) Each of the Subsidiary Guarantors has all requisite corporate or partnership power and authority to execute, deliver and perform its obligations under the Indenture and the Guarantees. The Guarantees endorsed on each Senior Note have ; the Indenture is in sufficient form for qualification under the TIA; the Indenture has been duly and validly authorized authorized, executed and executed delivered by each of the Subsidiary Guarantors andCompany and the Guarantors, when and (assuming the Senior Notes are authenticated due authorization, execution and delivery thereof by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute Trustee) constitutes the valid and legally binding obligations agreement of the Company and each of the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors them in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtbrought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(vi5) Each of The Notes are in the Company and each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its respective obligations under form contemplated by the Indenture; the Indenture is in sufficient form for qualification under the TIA; the Indenture has . The Notes have each been duly and validly authorized, executed and delivered by the Company and each and, when paid for by the Initial Purchasers in accordance with the terms of the Subsidiary Guarantors and this Agreement (assuming the due authorization, execution and delivery thereof of the Indenture by the TrusteeTrustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), constitutes will constitute the valid and legally binding agreement obligations of the Company and each Company, entitled to the benefits of the Subsidiary GuarantorsIndenture, and enforceable against the Company and the Subsidiary Guarantors in accordance with its their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtbrought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(vii6) Each of The Guarantees are in the Company and each of form contemplated by the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreements; the Registration Rights Agreements Indenture. The Guarantees have been duly and validly authorized, executed and delivered by the Company each Guarantor and each of the Subsidiary Guarantors (assuming the due authorization, execution and delivery thereof of the Indenture by the Initial Purchaser), Trustee) constitute the valid and legally binding agreement obligations of each Guarantor, entitled to the benefits of the Company and each such Subsidiary GuarantorsIndenture, enforceable against the Company and each such Subsidiary Guarantors of them in accordance with their terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
(viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrant Agreement. The Warrant Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtbrought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(ix7) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrants Exchange Notes and the Additional Warrants. The Warrants Private Exchange Notes and the Additional Warrants guarantees to be endorsed on them have been duly and validly authorized and executed by the Company and each of the Guarantors, as the case may be, and when countersigned the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Warrant Agent in accordance with Company and the provisions of the Warrant Agreement related guarantees have been duly executed and delivered to and paid for by the Initial Purchaser Guarantors, each in accordance with the terms of this Agreementthe Registration Rights Agreement and the Indenture (assuming the due authorization, will have been duly issued execution and delivered delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the CompanyCompany and the Guarantors, respectively, entitled to the benefits of the Warrant AgreementIndenture, and enforceable against the Company and the Guarantors, respectively, in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(x) When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants and upon exercise of the Additional Warrants, the Warrant Shares and the Additional Warrant Shares, as the case may be, will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights. The Warrant Shares and the Additional Warrant Shares, as the case may be, have been duly reserved for issuance in accordance with the terms of the Warrants, the Warrant Agreement and the Additional Warrants, as the case may be.
(xi) Each of the Company and the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; the execution, delivery and performance of this Agreement by the Company and the Subsidiary Guarantors and the consummation by the Company and the Subsidiary Guarantors of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company and each of the Subsidiary Guarantors. This Agreement has been duly executed and delivered by the Company and the Subsidiary Guarantors.
(xii) The Indenture, the Senior Notes, the Guarantees, the Warrants, the Additional Warrants, the Warrant Shares, the Common Stock, the Registration Rights Agreements and the Warrant Agreement conform in all material respects to the descriptions thereof contained in the Final Circular.
(xiii) To the knowledge of such counsel, no legal or governmental proceedings are pending or threatened to which any of the Company or any of its Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary is subject which, if determined adversely to the Company or the Subsidiary, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the other transactions described in the Final Circular under the caption "Use of Proceeds."
(xiv) The execution and delivery of the Exchange Notes and the Private Exchange Notes by the Company have been duly authorized by all necessary corporate action of the Company, and when the Exchange Notes and Private Exchange Notes have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Exchange Notes and the Private Exchange Notes will constitute the legal, valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganizationfraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtbrought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(xv) The Guarantees to be endorsed on each 8) Each of the Exchange Notes Guarantors has all requisite corporate or partnership power and authority to execute, deliver and perform its obligations under the Private Exchange Notes by Registration Rights Agreement; the Subsidiary Guarantors have Registration Rights Agreement has been duly authorized by all necessary corporate action of the Subsidiary Guarantorsand validly authorized, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Company and the Subsidiary Guarantors, and (assuming due authorization, execution and delivery thereof by the Initial Purchasers) constitutes the valid and legally binding agreement of the Company and the Guarantors enforceable against each of them in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Guarantees will constitute the legal, valid, binding and enforceable obligations of the Subsidiary Guarantorsits terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtbrought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(xvi9) The Each of the Guarantors has all requisite corporate or partnership power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company and the Guarantors of the transactions contemplated hereby have been duly and validly authorized by the Company and the Guarantors. This Agreement has been duly executed and delivered by each of the Company and the Guarantors.
(10) Each of the Guarantors has all requisite corporate or partnership power and authority to execute, deliver and perform its obligations under the Guaranty Agreement; the Credit Agreement and the Guaranty Agreement have been duly and validly authorized, executed and delivered by the Company and the Guarantors, to the extent a party thereto, and (assuming due authorization, execution and delivery thereof by the other parties thereto) constitute the valid and legally binding agreements of this Agreementthe Company and the Guarantors, to the extent a party thereto, enforceable against each of them in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(11) The Indenture, the Warrant Notes, the Exchange Notes, the Guarantees, the Registration Rights Agreement and the Registration Rights Agreements Credit Agreement conform as to legal matters in all material respects to the descriptions thereof contained in the Final Memorandum.
(12) To the knowledge of such counsel, no legal or governmental proceedings are pending or threatened to which the Company or any Subsidiary is a party or to which the property or assets of the Company or any Subsidiary is subject which would be required under the Act to be described in a registration statement or in a prospectus and are not described in the Final Memorandum, or which seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Final Memorandum.
(13) The statements in the Final Memorandum under the headings "Summary of the Prize Merger Agreement" and "Material United States Federal Tax Consequences," insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions, are accurate and present fairly the information described therein.
(14) Neither the Company nor any Subsidiary is, to the knowledge of such counsel, (i) in violation of its certificate of incorporation or bylaws or similar organizational documents, or (ii) in breach or violation of any statute, judgment, decree, order, rule or regulation applicable to it or any of its properties or assets, except for any such breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect (it being understood that such counsel need express no opinion with respect to the regulations of the Railroad Commission of the State of Texas).
(15) The execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated hereby and thereby Transactions (including, without limitation, the issuance and sale of the Securities Notes to the Initial PurchaserPurchasers) will not, after giving effect to the repayment of indebtedness to Bank One, not conflict with or constitute or result in a breach or violation of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a lien on any property or assets of the Company or any Subsidiary with respect to (i) the terms or provisions of any indenturecontract pursuant to which the Company or a Subsidiary has incurred indebtedness, mortgage,any contract described in the Final Memorandum or any contract filed as an exhibit to the Incorporated Documents (such contracts, the "Material Contracts"), except for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the articles of incorporation or bylaws or similar organizational documents of the Company or any Subsidiary, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any statute, judgment, decree, order, rule or regulation known to such counsel to be applicable to the Company or any Subsidiary and to transactions of the type contemplated by the Final Memorandum, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(xvii16) To the knowledge of such counsel, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company and the Subsidiary Guarantors of the Securities Notes to the Initial Purchaser Purchasers or the other transactions contemplated herebyin this Agreement, except such as may be required under state securities and Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained.
(xviii17) To the knowledge of such counsel, the Company and the Subsidiaries have obtained all Permits necessary to conduct the businesses now or proposed to be conducted by them as described in the Final Memorandum, the lack of which would, individually or in the aggregate, have a Material Adverse Effect; each of the Company and the Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Permit, except for any such revocation or termination which would not have a Material Adverse Effect.
(18) None of the Company or the Subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds from such sale (as described in the Final Memorandum under the caption "Use of Proceeds") will be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
(19) No registration under the Act of the Securities Notes is required in connection with the sale of the Securities Notes to the Initial Purchaser Purchasers as contemplated by this Agreement and the Final Circular Memorandum or in connection with the initial resale of the Securities Notes by the Initial Purchaser Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Securities Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under un- der the Act ("QIBs" ") or "Qualified Institutional Buyers"), accredited investors (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act ("Accredited Investors"), or foreign purchasers (as defined in Section 8)Regulation S, (ii) the accuracy of the Initial Purchaser's Purchasers' representations in Section 8 and those of the Company and the Subsidiary Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities Notes to the Initial Purchaser Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchaser Purchasers of the agreements set forth in Section 8 hereof.
(xix20) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities Notes will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
(xx) Neither the Company nor any of the Subsidiary Guarantors is an "investment company" or "promotor" or "principal underwriter" for an "investment company" as such terms are defined in the Investment Company Act of 1946, as amended, and the rules and regulations thereunder.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase and pay for the Securities Notes shall, in its sole discretion, be subject to the satisfaction or waiver of the following conditions condition on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Akin, Gump, Strauss, Haue▇▇▇▇▇▇ & ▇eld, ▇.L.P.▇▇▇▇▇, counsel for the Company and the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchaser, to the effect that:
(i) Each of the Company and the Subsidiary Guarantors is duly incorporated, validly existing and in good standing under the laws of its respective jurisdiction of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final CircularMemorandum. Each of the Company and the Subsidiary Guarantors is duly qualified as a foreign corporation and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires jurisdictions set forth below such qualification, except where the failure Guarantor's name on Schedule A attached to be so qualified would not, individually or in the aggregate, have a Material Adverse Effectsuch opinion.
(ii) As of the date thereof, the The Company has the authorized, issued and outstanding capitalization set forth in the Final CircularMemorandum; all of the outstanding shares of capital stock of the Subsidiary Company and the Guarantors have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; the Company owns one hundred percent of the issued and outstanding capital stock of each Guarantor; except for the pledge by the Company of capital stock of each Guarantor pursuant to the Indenture and except as otherwise set forth in the Final Memorandum, all of the outstanding shares of capital stock of the Guarantors are owned, directly or indirectly, by the Company, free and clear of all security interests perfected, or otherwise, and, to the knowledge of such counsel and except as set forth in the Final Circularcounsel, free and clear of all other liens, encumbrances, equities and claims or restrictions on transferability or voting.
(iii) Except as set forth in the Final CircularMemorandum, to the knowledge of such counsel (A) no options, warrants or other rights to purchase from the Company or any Subsidiary Guarantors Guarantor shares of capital stock or ownership interests in the Company or any Subsidiary Guarantors Guarantor are outstanding, (B) no agreements or other obligations of the Company or any Subsidiary Guarantors Guarantor to issue, or other rights to cause the Company or any Subsidiary Guarantors Guarantor to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company or any Subsidiary Guarantors Guarantor are outstanding and (C) no holder of securities of the Company or any Subsidiary Guarantors Guarantor is entitled to have such securities registered under a registration statement filed by the Company or any Subsidiary and the Guarantors under the Act with respect pursuant to the Securities or the Warrant SharesRegistration Rights Agreement.
(viv) Each of the Subsidiary Company and the Guarantors has all requisite corporate power and authority to execute, deliver and perform its respective obligations under the Guarantees. The Guarantees endorsed on each Senior Note have Indenture, the Notes, the Exchange Securities and the Private Exchange Securities; the Indenture is in sufficient form for qualification under the TIA; the Indenture has been duly and validly authorized by the Company and executed by each of the Subsidiary Guarantors and, when the Senior Notes are authenticated duly executed and delivered by the Trustee in accordance with the provisions Company and each of the Indenture Guarantors (assuming the due authorization, execution and delivered to and paid for delivery thereof by the Initial Purchaser in accordance with the terms of this AgreementTrustee), will constitute the valid and legally binding obligations agreement of the Company and each of the Subsidiary Guarantors, enforceable against the Company and each of the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyanceor other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(v) The Global Note (as such term is defined in the Indenture) is in the form contemplated by the Indenture. The Global Note has been duly and validly authorized by the Company and each of the Guarantors and when duly executed and delivered by the Company and each of the Guarantors and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, moratorium execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the Company and each of the Guarantors, entitled to the benefits of the Indenture, and enforceable against the Company and each of the Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(vi) Each of The Exchange Securities and the Private Exchange Securities have been duly and validly authorized by the Company and each of the Subsidiary Guarantors has all requisite corporate power Guarantors, and authority to execute, deliver when the Exchange Securities and perform its respective obligations under the Indenture; the Indenture is in sufficient form for qualification under the TIA; the Indenture has Private Exchange Securities have been duly and validly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery thereof of the Indenture by the TrusteeTrustee and due authentication and delivery of the Exchange Securities and the Private Exchange Securities by the Trustee in accordance with the Indenture), constitutes will constitute the valid and legally binding agreement obligations of the Company and each of the Subsidiary Guarantors, entitled to the benefits of the Indenture, and enforceable against the Company and each of the Subsidiary Guarantors in accordance with its their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(vii) Each of the Company and each of the Subsidiary Guarantors has have all requisite corporate power and authority to execute, deliver and perform its their obligations under the Registration Rights AgreementsAgreement; the Registration Rights Agreements have Agreement has been duly and validly authorizedauthorized by the Company and each of the Guarantors and, when duly executed and delivered by the Company and each of the Subsidiary Guarantors (assuming the due authorization, execution and delivery thereof by the Initial Purchaser), will constitute the valid and legally binding agreement of the Company and each such Subsidiary of the Guarantors, enforceable against the Company and each such Subsidiary of the Guarantors in accordance with their terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
(viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrant Agreement. The Warrant Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtbrought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(ix) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrants and the Additional Warrants. The Warrants and the Additional Warrants have been duly and validly authorized and executed by the Company and when countersigned by the Warrant Agent in accordance with the provisions of the Warrant Agreement and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will have been duly issued and delivered and will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Warrant Agreement, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(x) When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants and upon exercise of the Additional Warrants, the Warrant Shares and the Additional Warrant Shares, as the case may be, will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights. The Warrant Shares and the Additional Warrant Shares, as the case may be, have been duly reserved for issuance in accordance with the terms of the Warrants, the Warrant Agreement and the Additional Warrants, as the case may be.
(xiviii) Each of the Company and the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; the execution, delivery and performance of this Agreement by the Company and the Subsidiary Guarantors and the consummation by the Company and the Subsidiary Guarantors of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company and each of the Subsidiary Guarantors. This Agreement has been duly executed and delivered by each of the Company and the Subsidiary Guarantors.
(xiiix) The Indenture, the Senior Notes, the Guarantees, the Warrants, the Additional Warrants, the Warrant Shares, the Common Stock, Exchange Securities and the Registration Rights Agreements and the Warrant Agreement conform in all material respects to the descriptions thereof contained in the Final CircularMemorandum.
(xiiix) To No legal or governmental proceedings are pending or, to the knowledge of such counsel, no legal or governmental proceedings are pending or threatened to which any of the Company or any of its Subsidiaries the Guarantors is a party or to which the property or assets of the Company or any Subsidiary Guarantor is subject which, if determined adversely to the Company or the SubsidiaryGuarantors, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities Notes to be sold hereunder or the consummation of the other transactions described in the Final Circular Memorandum under the caption "Use of Proceeds."
(xivxi) The execution and delivery None of the Exchange Notes and Company or the Private Exchange Notes by the Company have been duly authorized by all necessary corporate action of the Company, and when the Exchange Notes and Private Exchange Notes have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Exchange Notes and the Private Exchange Notes will constitute the legal, valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture, except that the enforcement thereof may be subject to Guarantors is (i) bankruptcy, insolvency, reorganization, moratorium in violation of its certificate of incorporation or other bylaws (or similar laws now organizational document) or hereafter in effect relating to creditors' rights generally and (ii) general principles to the knowledge of equity and the discretion such counsel, in breach or violation of the court before which any proceeding therefor may be broughtjudgment, decree or order applicable to any of them or any of their respective properties or assets.
(xv) The Guarantees to be endorsed on each of the Exchange Notes and the Private Exchange Notes by the Subsidiary Guarantors have been duly authorized by all necessary corporate action of the Subsidiary Guarantors, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Company and the Subsidiary Guarantors in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Guarantees will constitute the legal, valid, binding and enforceable obligations of the Subsidiary Guarantors, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(xvixii) The execution and delivery of this Agreement, the Indenture, the Warrant Agreement and the Registration Rights Agreements Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities Notes to the Initial Purchaser) will not, after giving effect and the retention by the Company of BTSC pursuant to the repayment of indebtedness to Bank OneBTSC Engagement Letter and BTSC's acting as contemplated hereby and thereby, will not conflict with or constitute or result in a breach or violation of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any indentureContract known to such counsel (which Contracts are listed on Schedule B attached to such opinion), mortgage,(ii) the certificate of incorporation or bylaws (or similar organizational document) of the Company or any of the Guarantors, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof) any statute, judgment, decree, order, rule or regulation which, in such counsel's experience, is normally applicable both to general business corporations which are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without our having made any special investigation as to other laws).
(xviixiii) To the knowledge of such counsel, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company and the Subsidiary Guarantors of the Securities Notes to the Initial Purchaser or the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained.
(xviiixiv) To the best of such counsel's knowledge, there are no legal or governmental proceedings involving or affecting the Company or the Guarantors or any of their respective properties or assets which would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum nor are there any material contracts or other documents which would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum.
(xv) None of the Company or the Guarantors is, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds from such sale (as described in the Final Memorandum under the caption "Use of Proceeds") will be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
(xvi) No registration under the Act of the Securities Notes is required in connection with the sale of the Securities Notes to the Initial Purchaser as contemplated by this Agreement and the Final Circular Memorandum or in connection with the initial resale of the Securities Notes by the Initial Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) that the purchasers who buy such Securities Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act ("QIBs" ") or "Qualified Institutional Buyers"), accredited investors as defined in Rule 501(a)(1501(a) (1), (2), (3) or (7) promulgated under the Act ("Accredited Investors"), or foreign purchasers (as defined in Section 8), (ii) the accuracy of the Initial Purchaser's representations in Section 8 hereof and those of the Company and the Subsidiary Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities Notes to the Initial Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchaser of the agreements set forth in Section 8 hereof.
(xixxvii) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities Notes will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
(xxxviii) Neither To the knowledge of such counsel, none of the Company nor or the Guarantors has engaged or retained any person, other than BTSC as the Initial Purchaser, to act as a financial advisor, underwriter or placement agent in connection with the issuance of the Subsidiary Guarantors is an "investment company" or "promotor" or "principal underwriter" Notes and, except for an "investment company" the fees and expenses payable in connection with the issuance of the Notes as such terms are defined described in the Investment Company Act Final Memorandum no person has the right to receive a material amount of 1946financial advisory, underwriting, placement, finder's or similar fees in connection with, or as amendeda result of, the issuance of the Notes and the rules purchase of the Notes by the Initial Purchaser or the consummation of the other transactions contemplated hereby. At the time the foregoing opinion is delivered, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall additionally state that it has participated in conferences with officers and regulations thereunderother representatives of the Company and the Guarantors, representatives of the independent public accountants for the Company and Guarantors, representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum, no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). In rendering such opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass on such matters. The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ described in this Section shall be rendered to the Initial Purchaser at the request of the Company and the Guarantors and shall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchaser shall have received the opinion, in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of White & Case, counsel for the Initial Purchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may reasonably require. In rendering such opinion, White & Case shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchaser shall have received from the Independent Accountants comfort letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchaser.
(d) The representations and warranties of the Company and the Guarantors contained i
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Securities shall, in its their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial PurchaserPurchasers, of AkinShereff, GumpFriedman, Strauss, HaueHoff▇▇▇ & ▇eldood▇▇▇, ▇.L.P.▇P, counsel for the Company and the Subsidiary GuarantorsCompany, in form and substance satisfactory to counsel for the Initial PurchaserPurchasers, to the effect that:
(i) Each of the Company and the Subsidiary Guarantors is duly incorporated, validly existing and in good standing under the laws of its respective jurisdiction of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final CircularMemorandum. Each of the Company and the Subsidiary Guarantors is duly qualified as a foreign corporation and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect.
(ii) As of the date thereof, the The Company has the authorized, issued and outstanding authorized capitalization as set forth in the Final CircularMemorandum; all of the outstanding shares of capital stock of the Subsidiary Guarantors Subsidiaries are owned, directly or indirectly, by the Company, and, to the knowledge of such counsel and except as set forth in the Final Circular, free and clear of all liens, encumbrances, equities and claims or restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of certain jurisdictions) or voting.
(iii) Except To the knowledge of such counsel, except as set forth in the Final CircularMemorandum, to the knowledge of such counsel (A) no options, warrants or other rights to purchase from the Company or any Subsidiary Guarantors shares of capital stock or ownership interests in the Company or any Subsidiary Guarantors are outstandingoutstanding (other than options granted in 1995 by Valentec International Corporation to Citibank, N.A. to purchase 10,000 shares of common stock), (B) no agreements or other obligations of the Company or any Subsidiary Guarantors to issue, or other rights to cause the Company or any Subsidiary Guarantors to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company or any Subsidiary Guarantors are outstanding and and, (C) no holder of securities of the Company or any Subsidiary Guarantors (other than the Registrable Notes) is entitled to have such securities registered under a registration statement filed by the Company or any Subsidiary Guarantors under the Act with respect pursuant to the Securities or the Warrant SharesRegistration Rights Agreement (other than as set forth on Exhibit A hereto).
(viv) Each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture and the Guarantees. The Guarantees endorsed on each Senior Note have ; the Indenture is in sufficient form for qualification under the TIA; the Indenture has been duly and validly authorized authorized, executed and executed delivered by each of the Subsidiary Guarantors andCompany and the Guarantors, when and (assuming the Senior Notes are authenticated due authorization, execution and delivery thereof by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute Trustee) constitutes the valid and legally binding obligations agreement of the Company and each of the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors them in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtbrought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(viv) Each of The Notes are in the Company and each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its respective obligations under form contemplated by the Indenture; the Indenture is in sufficient form for qualification under the TIA; the Indenture has . The Notes have each been duly and validly authorized, executed and delivered by the Company and each and, when paid for by the Initial Purchasers in accordance with the terms of the Subsidiary Guarantors and this Agreement (assuming the due authorization, execution and delivery thereof of the Indenture by the TrusteeTrustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), constitutes will constitute the valid and legally binding agreement obligations of the Company and each Company, entitled to the benefits of the Subsidiary GuarantorsIndenture, and enforceable against the Company and the Subsidiary Guarantors in accordance with its their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights gener- ally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(vi) The Guarantees are in the form contemplated by the Indenture. The Guarantees have been duly and validly authorized, executed and delivered by each Guarantor and (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture) constitute the valid and legally binding obligations of each Guarantor, entitled to the benefits of the Indenture, enforceable against each of them in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtbrought (regardless of whether such enforcement is considered in a proceeding in equity or at law). No opinion is expressed with respect to the effectiveness or enforceability against third parties of the Guarantees.
(vii) Each of The Exchange Notes and the Private Exchange Notes and the Guarantees to be endorsed on them have been duly and validly authorized by the Company and each of the Subsidiary Guarantors has all requisite corporate power Guarantors, as the case may be, and authority to execute, deliver when the Exchange Notes and perform its obligations under the Registration Rights Agreements; the Registration Rights Agreements Private Exchange Notes have been duly and validly authorized, executed and delivered by the Company and the Guarantees have been duly executed and delivered by the Guarantors, each in accordance with the terms of the Subsidiary Guarantors Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery thereof of the Indenture by the Initial PurchaserTrustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding agreement obligations of the Company and each such Subsidiary the Guarantors, respectively, entitled to the benefits of the Indenture, and enforceable against the Company and each such Subsidiary Guarantors the Guarantors, respectively, in accordance with their terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
(viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrant Agreement. The Warrant Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtbrought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(ixviii) The Each of the Company and the Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrants and Registration Rights Agreement; the Additional Warrants. The Warrants and the Additional Warrants have Registration Rights Agreement has been duly and validly authorized authorized, executed and executed delivered by the Company and when countersigned by the Warrant Agent in accordance with the provisions of the Warrant Agreement Guarantors, and delivered to (assuming due authorization, execution and paid for delivery thereof by the Initial Purchaser in accordance with the terms of this Agreement, will have been duly issued and delivered and will constitute Purchasers) constitutes the valid and legally binding obligations agreement of the Company, entitled to Company and the benefits of the Warrant Agreement, and Guarantors enforceable against the Company each of them in accordance with their its terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(x) When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants and upon exercise of the Additional Warrants, the Warrant Shares and the Additional Warrant Shares, as the case may be, will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights. The Warrant Shares and the Additional Warrant Shares, as the case may be, have been duly reserved for issuance in accordance with the terms of the Warrants, the Warrant Agreement and the Additional Warrants, as the case may be.
(xi) Each of the Company and the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; the execution, delivery and performance of this Agreement by the Company and the Subsidiary Guarantors and the consummation by the Company and the Subsidiary Guarantors of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company and each of the Subsidiary Guarantors. This Agreement has been duly executed and delivered by the Company and the Subsidiary Guarantors.
(xii) The Indenture, the Senior Notes, the Guarantees, the Warrants, the Additional Warrants, the Warrant Shares, the Common Stock, the Registration Rights Agreements and the Warrant Agreement conform in all material respects to the descriptions thereof contained in the Final Circular.
(xiii) To the knowledge of such counsel, no legal or governmental proceedings are pending or threatened to which any of the Company or any of its Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary is subject which, if determined adversely to the Company or the Subsidiary, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the other transactions described in the Final Circular under the caption "Use of Proceeds."
(xiv) The execution and delivery of the Exchange Notes and the Private Exchange Notes by the Company have been duly authorized by all necessary corporate action of the Company, and when the Exchange Notes and Private Exchange Notes have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Exchange Notes and the Private Exchange Notes will constitute the legal, valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganizationfraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtbrought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(xvix) The Guarantees to be endorsed on each Each of the Exchange Notes Company and the Private Exchange Notes Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Subsidiary Company and the Guarantors of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action of the Subsidiary Guarantors, and when the Exchange Notes Company and the Private Exchange Notes have Guarantors. This Agreement has been duly executed and delivered by each of the Company and the Subsidiary Guarantors in accordance with Guarantors.
(x) The Indenture, the terms of Notes, the Exchange Notes, the Guarantees and the Registration Rights Agreement and conform as to legal matters in all material respects to the Indenture, and assuming due authentication by descriptions thereof contained in the Trustee, the Guarantees will constitute the legal, valid, binding and enforceable obligations of the Subsidiary Guarantors, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtFinal Memorandum.
(xvixi) To the knowledge of such counsel, no legal or governmental proceedings are pending or, to the knowledge of such counsel, threatened to which the Company or any Guarantor is a party or to which the property or assets of the Company or any Guarantor is subject which would be required under the Act to be described in a registration statement or in a prospectus and are not described in the Final Memorandum, or which seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Final Memorandum.
(xii) To the knowledge of such counsel, neither the Company nor any Guarantor is in violation of its certificate of incorporation or bylaws, ex- cept for any such breach, default, violation or event which would not, individually or in the aggregate, have a Material Adverse Effect.
(xiii) The execution execution, delivery and delivery performance of this Agreement, the Indenture, the Warrant Agreement and the Registration Rights Agreements and Agreement, the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities Notes to the Initial PurchaserPurchasers) will not, after giving effect the consummation of the JPS Acquisition and the amendment to the repayment of indebtedness to Bank One, Credit Agreement will not conflict with or constitute or result in a breach or violation of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of or cause an acceleration of any obligation under, or result in the imposition or creation of (or the obligation to create or impose) a lien on any property or assets of the Company or any Guarantor with respect to (i) the terms or provisions of any indentureof the terms or provisions of any contract described in the Final Memorandum (such contracts, mortgage,the "Material Contracts"), except for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws of the Company or any Guarantor, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any statute, judgment, decree, order, rule or regulation known to such counsel to be applicable to the Company or any Guarantor and to transactions of the type contemplated by the Final Memorandum, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(xviixiv) To the knowledge of such counsel, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company and the Subsidiary Guarantors of the Securities Notes to the Initial Purchaser Purchasers or the other transactions contemplated herebyin this Agreement, except (i) in connection with the registration under the Act of the Notes, and the Private Exchange Notes, if applicable, pursuant to the Registration Rights Agreement, (ii) the qualification of the Indenture under the TIA in connection with the issuance of the Notes, or (iii) such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits (x) as have been obtained and made, (y) as may be required under state securities or blue sky laws, as to which such counsel need express no opinion, or (x) as would not, if not obtained, have a Material Adverse Effect.
(xviiixv) None of the Company or the Guarantors is, or immediately after the sale of the Notes to be sold hereunder and the application of the pro- ceeds from such sale (as described in the Final Memorandum under the caption "Use of Proceeds") will be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
(xvi) No registration under the Act of the Securities Notes is required in connection with the sale of the Securities Notes to the Initial Purchaser Purchasers as contemplated by this Agreement and the Final Circular Memorandum or in connection with the initial resale of the Securities Notes by the Initial Purchaser Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) that the purchasers who buy such Securities Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act ("QIBs" QIBs or "Qualified Institutional Buyers"), accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act ("Accredited Investors"), or foreign purchasers (as defined in Section 8), (ii) the accuracy of the Initial Purchaser's Purchasers' representations in Section 8 and those of the Company and the Subsidiary Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities Notes to the Initial Purchaser Purchasers and the initial resale thereof and thereof, (iii) the due performance by the Initial Purchaser Purchasers of the agreements set forth in Section 8 hereofhereof and the offering and transfer procedures set forth in the Final Memorandum, and (iv) the accuracy of the representations made by each Accredited Investor who purchases Notes in the initial resale as set forth in the Final Memorandum.
(xixxvii) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities Notes will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
. At the time the foregoing opinion is delivered, such counsel shall additionally state that it has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (xx) Neither except to the extent specified in subsection 7(a)(x)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical, accounting, reserve and well data included in the Final Memorandum). The opinion of such counsel described in this Section shall be rendered to the Initial Purchasers at the request of the Company nor and shall so state therein. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. References to Material Adverse Effect in this subsection (a) shall not include prospects of the Subsidiary Guarantors is an "investment company" or "promotor" or "principal underwriter" for an "investment company" as such terms are defined in the Investment Company Act of 1946, as amended, and the rules Subsidiaries, taken as a whole. In rendering such opinion, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the federal laws of the United States and regulations thereunder.the laws of the States of New York and Del
Appears in 1 contract
Sources: Purchase Agreement (Safety Components Fabric Technologies Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase and pay for the Securities shall, in its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Akin, Gump, Strauss, Haue▇ & ▇eld, ▇.L.P., counsel for the Company and the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchaser, to the effect that:
(i) Each of the Company and the Subsidiary Guarantors is duly incorporated, validly existing and in good standing under the laws of its respective jurisdiction of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Circular. Each of the Company and the Subsidiary Guarantors is duly qualified as a foreign corporation and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect.
(ii) As of the date thereof, the Company has the authorized, issued and outstanding capitalization set forth in the Final Circular; all of the outstanding shares of capital stock of the Subsidiary Guarantors are owned, directly or indirectly, by the Company, and, to the knowledge of such counsel and except as set forth in the Final Circular, free and clear of all liens, encumbrances, equities and claims or restrictions on transferability or voting.
(iii) Except as set forth in the Final Circular, to the knowledge of such counsel (A) no options, warrants or other rights to purchase from the Company or any Subsidiary Guarantors shares of capital stock in the Company or any Subsidiary Guarantors are outstanding, (B) no agreements or other obligations of the Company or any Subsidiary Guarantors to issue, or other rights to cause the Company or any Subsidiary Guarantors to convert, any obligation into, or exchange any securities for, shares of capital stock in the Company or any Subsidiary Guarantors are outstanding and (C) no holder of securities of the Company or any Subsidiary Guarantors is entitled to have such securities registered under a registration statement filed by the Company or any Subsidiary Guarantors under the Act with respect to the Securities Securities.
(iv) The Senior Notes have been duly and validly authorized and executed by the Company and when delivered by the Company (assuming the due authorization, execution, and delivery of the Indenture by the Trustee and the due authentication of the Senior Notes by the Trustee in accordance with the Indenture) and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute the valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors" rights generally and (ii) general principles of equity and the Warrant Sharesdiscretion of the court before which any proceeding therefor may be brought.
(v) Each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Guarantees. The Guarantees endorsed on each Senior Note have been duly and validly authorized and executed by each of the Subsidiary Guarantors and, when the Senior Notes are authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute the valid and legally binding obligations of each of the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' " rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(vi) Each of the Company and each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its respective obligations under the Indenture; the Indenture is in sufficient form for qualification under the TIA; the Indenture has been duly and validly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors and (assuming the due authorization, execution and delivery thereof by the Trustee), constitutes the valid and legally binding agreement of the Company and each of the Subsidiary Guarantors, enforceable against the Company and the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' " rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(vii) Each of the Company and each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights AgreementsAgreement; the Registration Rights Agreements have Agreement has been duly and validly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors (assuming the due authorization, execution and delivery thereof by the Initial Purchaser), constitute the valid and legally binding agreement of the Company and each such Subsidiary Guarantors, enforceable against the Company and each such Subsidiary Guarantors in accordance with their terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
(viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrant Agreement. The Warrant Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' " rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be broughtbrought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(ix) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrants and the Additional Warrants. The Warrants and the Additional Warrants have been duly and validly authorized and executed by the Company and when countersigned by the Warrant Agent in accordance with the provisions of the Warrant Agreement and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will have been duly issued and delivered and will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Warrant Agreement, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(x) When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants and upon exercise of the Additional Warrants, the Warrant Shares and the Additional Warrant Shares, as the case may be, will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights. The Warrant Shares and the Additional Warrant Shares, as the case may be, have been duly reserved for issuance in accordance with the terms of the Warrants, the Warrant Agreement and the Additional Warrants, as the case may be.
(xiviii) Each of the Company and the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; the execution, delivery and performance of this Agreement by the Company and the Subsidiary Guarantors and the consummation by the Company and the Subsidiary Guarantors of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company and each of the Subsidiary Guarantors. This Agreement has been duly executed and delivered by the Company and the Subsidiary Guarantors.
(xiiix) The Indenture, the Senior Notes, the Guarantees, the Warrants, the Additional Warrants, the Warrant Shares, the Common Stock, Guarantees and the Registration Rights Agreements and the Warrant Agreement conform in all material respects to the descriptions thereof contained in the Final Circular.
(xiiix) To the knowledge of such counsel, no legal or governmental proceedings are pending or threatened to which any of the Company or any of its Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary is subject which, if determined adversely to the Company or the Subsidiary, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the other transactions described in the Final Circular under the caption "Use of Proceeds."
(xivxi) The execution and delivery of the Exchange Notes and the Private Exchange Notes by the Company have been duly authorized by all necessary corporate action of the Company, and when the Exchange Notes and Private Exchange Notes have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Exchange Notes and the Private Exchange Notes will constitute the legal, valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' " rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(xvxii) The Guarantees to be endorsed on each of the Exchange Notes and the Private Exchange Notes by the Subsidiary Guarantors have been duly authorized by all necessary corporate action of the Subsidiary Guarantors, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Company and the Subsidiary Guarantors in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Guarantees will constitute the legal, valid, binding and enforceable obligations of the Subsidiary Guarantors, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' " rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(xvixiii) The execution and delivery of this Agreement, the Indenture, the Warrant Agreement Indenture and the Registration Rights Agreements Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchaser) will not, after giving effect to the repayment of indebtedness to Bank One, not conflict with or constitute or result in a breach or violation of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any indenture, mortgage,, deed of trust, loan agreement, note, lease, license, franchise agreement, permit, certificate, contract or other agreement or instrument known to such counsel (including in any event any of the foregoing which have been filed by the Company with the Commission) to which the Company or any of the Subsidiary Guarantors is a party or to which any of them or their respective properties or assets is subject, except for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws of the Company or any of the Subsidiary Guarantors, or (iii) (assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof) any statute, judgment, decree, order, rule or regulation known to such counsel to be applicable to the Company or any of the Subsidiary Guarantors or any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(xviixiv) To the knowledge of such counsel, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company and the Subsidiary Guarantors of the Securities to the Initial Purchaser or the other transactions contemplated hereby.
(xviiixv) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchaser as contemplated by this Agreement and the Final Circular or in connection with the initial resale of the Securities by the Initial Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) that the purchasers who buy such Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act ("QIBs" or "Qualified Institutional Buyers"), accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act ("Accredited Investors"), or foreign purchasers (as defined in Section 8), (ii) the accuracy of the Initial Purchaser's representations in Section 8 and those of the Company and the Subsidiary Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchaser of the agreements set forth in Section 8 hereof.
(xixxvi) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
(xxxvii) Neither the Company nor any of the Subsidiary Guarantors is an "investment company" or "promotorpromoter" or "principal underwriter" for an "investment company" as such terms are defined in the Investment Company Act of 1946, as amended, and the rules and regulations thereunder. At the time the foregoing opinion is delivered, Akin, Gump, Strauss, Haue▇ & ▇eld, ▇.L.P. shall additionally state that it has participated in conferences with officers and other representatives of the Company and the Subsidiary Guarantors, representatives of the independent public accountants for the Company, representatives of the Initial Purchaser and counsel for the Initial Purchaser, at which conferences the contents of the Final Circular and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Circular (except to the extent specified in subsection 7(a)(ii) and (ix)), no facts have come to its attention which lead it to believe that the Circular, on the date thereof or at the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial or statistical data included in the Final Circular). The opinion of Akin, Gump, Strauss, Haue▇ & ▇eld, ▇.L.P. described in this subsection (a) shall be rendered to the Initial Purchaser at the request of the Company and the Subsidiary Guarantors and shall so state therein.
(b) On the Closing Date, the Initial Purchaser shall have received the opinion, in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of Vins▇▇ & ▇lki▇▇ ▇.▇.P., counsel for the Initial Purchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchaser may require. In rendering such opinion, Vins▇▇ & ▇lki▇▇ ▇.▇.P. shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to the Initial Purchaser, to the effect set forth in Exhibit B hereto.
(d) The representations and warranties of each of the Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the C
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase and pay for the Securities shall, in its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Akin, Gump, Strauss, Haue▇ & ▇eld, ▇.L.P., counsel for the Company and the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchaser, to the effect that:
(i) Each of the Company and the Subsidiary Guarantors is duly incorporated, validly existing and in good standing under the laws of its respective jurisdiction of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Circular. Each of the Company and the Subsidiary Guarantors is duly qualified as a foreign corporation and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect.
(ii) As of the date thereof, the Company has the authorized, issued and outstanding capitalization set forth in the Final Circular; all of the outstanding shares of capital stock of the Subsidiary Guarantors are owned, directly or indirectly, by the Company, and, to the knowledge of such counsel and except as set forth in the Final Circular, free and clear of all liens, encumbrances, equities and claims or restrictions on transferability or voting.
(iii) Except as set forth in the Final Circular, to the knowledge of such counsel (A) no options, warrants or other rights to purchase from the Company or any Subsidiary Guarantors shares of capital stock in the Company or any Subsidiary Guarantors are outstanding, (B) no agreements or other obligations of the Company or any Subsidiary Guarantors to issue, or other rights to cause the Company or any Subsidiary Guarantors to convert, any obligation into, or exchange any securities for, shares of capital stock in the Company or any Subsidiary Guarantors are outstanding Subsidiary
(iv) The Senior Notes have been duly and validly authorized and executed by the Company and when delivered by the Company (Cassuming the due authorization, execution, and delivery of the Indenture by the Trustee and the due authentication of the Senior Notes by the Trustee in accordance with the Indenture) no holder and paid for by the Initial Purchaser in accordance with the terms of securities this Agreement, will constitute the valid and legally binding obligations of the Company or any Subsidiary Guarantors is entitled to have such securities registered under a registration statement filed by enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any Subsidiary Guarantors under the Act with respect to the Securities or the Warrant Sharesproceeding therefor may be brought.
(v) Each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Guarantees. The Guarantees endorsed on each Senior Note have been duly and validly authorized and executed by each of the Subsidiary Guarantors and, when the Senior Notes are authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute the valid and legally binding obligations of each of the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(vi) Each of the Company and each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its respective obligations under the Indenture; the Indenture is in sufficient form for qualification under the TIA; the Indenture has been duly and validly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors and (assuming the due authorization, execution and delivery thereof by the Trustee), constitutes the valid and legally binding agreement of the Company and each of the Subsidiary Guarantors, enforceable against the Company and the Subsidiary Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(vii) Each of the Company and each of the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreements; the Registration Rights Agreements have been duly and validly authorized, executed and delivered by the Company and each of the Subsidiary Guarantors (assuming the due authorization, execution and delivery thereof by the Initial Purchaser), constitute the valid and legally binding agreement of the Company and each such Subsidiary Guarantors, enforceable against the Company and each such Subsidiary Guarantors in accordance with their terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws nowInitial
(viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrant Agreement. The Warrant Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(ix) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Warrants and the Additional Warrants. The Warrants and the Additional Warrants have been duly and validly authorized and executed by the Company and when countersigned by the Warrant Agent in accordance with the provisions of the Warrant Agreement and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will have been duly issued and delivered and will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Warrant Agreement, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(x) When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants and upon exercise of the Additional Warrants, the Warrant Shares and the Additional Warrant Shares, as the case may be, will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights. The Warrant Shares and the Additional Warrant Shares, as the case may be, have been duly reserved for issuance in accordance with the terms of the Warrants, Warrants and the Warrant Agreement and the Additional Warrants, as the case may beAgreement.
(xi) Each of the Company and the Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; the execution, delivery and performance of this Agreement by the Company and the Subsidiary Guarantors and the consummation by the Company and the Subsidiary Guarantors of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of the Company and each of the Subsidiary Guarantors. This Agreement has been duly executed and delivered by the Company and the Subsidiary Guarantors.
(xii) The Indenture, the Senior Notes, the Guarantees, the Warrants, the Additional Warrants, the Warrant Shares, the Common Stock, the Registration Rights Agreements and the Warrant Agreement conform in all material respects to the descriptions thereof contained in the Final Circular.
(xiii) To the knowledge of such counsel, no legal or governmental proceedings are pending or threatened to which any of the Company or any of its Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary is subject which, if determined adversely to the Company or the Subsidiary, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the other transactions described in the Final Circular under the caption "Use of Proceeds."
(xiv) The execution and delivery of the Exchange Notes and the Private Exchange Notes by the Company have been duly authorized by all necessary corporate action of the Company, and when the Exchange Notes and Private Exchange Notes have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Exchange Notes and the Private Exchange Notes will constitute the legal, valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(xv) The Guarantees to be endorsed on each of the Exchange Notes and the Private Exchange Notes by the Subsidiary Guarantors have been duly authorized by all necessary corporate action of the Subsidiary Guarantors, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Company and the Subsidiary Guarantors in accordance with the terms of the Registration Rights Agreement and the Indenture, and assuming due authentication by the Trustee, the Guarantees will constitute the legal, valid, binding and enforceable obligations of the Subsidiary Guarantors, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(xvi) The execution and delivery of this Agreement, the Indenture, the Warrant Agreement and the Registration Rights Agreements and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchaser) will not, after giving effect to the repayment of indebtedness to Bank One, not conflict with or constitute or result in a breach or violation of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any indenture, mortgage,, deed of trust, loan agreement, note, lease, license, franchise agreement, permit, certificate, contract or other agreement or instrument known to such counsel (including in any event any of the foregoing which have been filed by the Company
(xvii) To the knowledge of such counsel, no consent, approval, authorization or order of any governmental authority is required for the issuance and sale by the Company and the Subsidiary Guarantors of the Securities to the Initial Purchaser or the other transactions contemplated hereby.
(xviii) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchaser as contemplated by this Agreement and the Final Circular or in connection with the initial resale of the Securities by the Initial Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) that the purchasers who buy such Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act ("QIBs" or "Qualified Institutional Buyers"), accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act ("Accredited Investors"), or foreign purchasers (as defined in Section 8), (ii) the accuracy of the Initial Purchaser's representations in Section 8 and those of the Company and the Subsidiary Guarantors contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchaser and the initial resale thereof and (iii) the due performance by the Initial Purchaser of the agreements set forth in Section 8 hereof.
(xix) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
(xx) Neither the Company nor any of the Subsidiary Guarantors is an "investment company" or "promotorpromoter" or "principal underwriter" for an "investment company" as such terms are defined in the Investment Company Act of 1946, as amended, and the rules and regulations thereunder.
(b) On the Closing Date, the Initial Purchaser shall have received the opinion, in form and substance satisfactory to the Initial Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser, of Vins▇▇ & ▇lki▇▇ ▇.▇.P., counsel for the Initial Purchaser, with respect to certain legal matters relating to this Agreement ans such other related matters as the Initial Purchaser may require. In rendering such opinion, Vins▇▇ & ▇lki▇▇ ▇.▇.P. shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to the Initial Purchaser, to the effect set forth in Exhibit C hereto.
(d) The representations and warranties of each of the Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company's and the Subsidiary Guarantors' officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Company and the Subsidiary Guarantors shall have complied in all material respects with all agreements and satisfied hereunder at or prior to the Closing Date; and, except as described in the Circular (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Circular, there shall have been no Material Adverse Change or any development that, singly or in the aggregate, is reasonably likely to cause a Material Adverse Change.
(e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
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