Conditions of the Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date: (a) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Issuer and the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers, to the effect that: (i) The Issuer is a corporation existing and in good standing under the General Corporation Law of the State of Delaware. Each Subsidiary Guarantor is a corporation existing and in good standing under the General Corporation Law of the State of Delaware. Each of the Issuer and each Subsidiary Guarantor is qualified as foreign corporation in good standing in each of the jurisdictions set forth on a Schedule to such counsel's opinion. (ii) As of December 31, 1996, the Issuer had the authorized equity capitalization set forth in the Final Memorandum under Capitalization. To such counsel's actual knowledge, there are no (A) options, warrants or other rights to purchase, (B) agreements or other obligations of the Issuer or any Subsidiary Guarantor to issue or (C) other rights to convert any obligation into, or exchange any securities for, shares of capital stock of or ownership interests in any of the Subsidiaries outstanding. (iii) Each of the Issuer and each Subsidiary Guarantor has the corporate power to enter into and perform its obligations under the Operative Agreements to which it is a party, including without limitation the corporate power to issue, sell and deliver the Notes and the Guarantees, respectively, as contemplated by the Purchase Agreement. (iv) The Issuer's Board of Directors has adopted by requisite vote the resolutions necessary to authorize the Issuer's execution, delivery and performance of the Operative Agreements to which it is a party and the Pricing Committee appointed by the Issuer's Board of Directors to act with respect to this Agreement has approved by requisite vote the price and interest rate set forth therein. Each Subsidiary Guarantor's Board of Directors has adopted by requisite vote the resolutions necessary to authorize such Subsidiary Guarantor's execution, delivery and performance of the Operative Agreements to which it is a party. (v) Each of the Issuer and each Subsidiary Guarantor has duly executed and delivered this Agreement, the Indenture and the Registration Rights Agreement. (vi) Each of this Agreement, the Indenture and the Registration Rights Agreement is a valid and binding obligation of each of the Issuer and each Subsidiary Guarantor and (assuming the due authorization, execution and delivery thereof by the other parties thereto) is enforceable against each of the Issuer and each Subsidiary Guarantor in accordance with its terms. (vii) The Notes have been duly executed and delivered by the Issuer and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and binding obligations of the Issuer, entitled to the benefits of the Indenture, and enforceable against the Issuer in accordance with their terms. (viii) The Guarantees have been duly executed and delivered by each of the Subsidiary Guarantors and, when the Notes are duly and validly authorized, executed, issued and authenticated in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms hereof, will be the valid and binding obligations of each of the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors in accordance with their terms and entitled to the benefits of the Indenture. (ix) When the Exchange Notes have been duly executed and delivered by the Issuer in accordance with the terms of the Registration Rights Agreement, the Exchange Offer and Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes by the Trustee in accordance with the Indenture), the Exchange Notes will constitute the valid and binding obligations of the Issuer, entitled to the benefits of the Indenture, and enforceable against the Issuer in accordance with their terms. (x) The statements in the Final Memorandum under the headings "Description of Notes," "Description of Credit Agreement" and "Exchange Offer and Registration Rights," insofar as such statements purport to summarize certain provisions of the Indenture, the Notes, the Guarantees, the Registration Rights Agreement and the Credit Agreement and subject to the limitations contained in such statements, provide a fair and accurate summary in all material respects of such provisions of such agreements. (xi) The execution and delivery of this Agreement, the Registration Rights Agreement and the Indenture, and the consummation of the transactions contemplated thereby (including, without limitation, the issuance and sale of the Securities to the Initial Purchasers) do not and will not conflict with or constitute or result in a breach or default under (or an event which with notice or the passage of time or both would constitute a default under) or violation of any of, (i) the certificate of incorporation or bylaws of the Issuer or any Subsidiary Guarantor, (ii) any statute or governmental rule or regulation which, in the experience of such counsel, is normally applicable both to general business corporations that are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without such counsel having made any special investigation as to other laws and provided that such counsel need express no opinion with respect to (a) any laws, rules or regulations to which the Issuer or any Subsidiary Guarantor may be subject as a result of any of the Initial Purchasers' legal or regulatory status or the involvement of any of the Initial Purchasers in such transactions or (b) any laws, rules or regulations relating to disclosure, misrepresentations or fraud), (iii) the terms or provisions of any contract set forth on a Schedule to such counsel's opinion attached hereto, except (in the case of clauses (ii) and (iii) above) for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (xii) To the actual knowledge of such counsel, no consent, waiver, approval, authorization or order of any court or governmental authority is required for the issuance and sale by the Issuer and the Subsidiary Guarantors of the Securities to the Initial Purchasers or the consummation by the Issuer and the Subsidiary Guarantors of the other transactions contemplated by the Operative Agreements, except such as may be required under the Act, the Exchange Act, the TIA and the security or Blue Sky laws of the various states (and the rules and regulations thereunder), as to which such counsel need express no opinion in this paragraph. (xiii) To the actual knowledge of such counsel, no legal or governmental proceedings are pending to which the Issuer or the Subsidiary Guarantors is a party or to which the property or assets of the Issuer or the Subsidiary Guarantors is subject which seek to restrain, enjoin or prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold to the Initial Purchasers or the consummation of the other transactions contemplated by the Operative Documents. (xiv) Neither the Issuer nor any Subsidiary Guarantor is, or immediately after the sale of the Notes to the Initial Purchasers and application of the net proceeds therefrom as described in the Offering Memorandum under the caption "Use of Proceeds" will be, an "investment company" as such term is defined in the Investment Issuer Act of 1940, as amended. (xv) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchasers in the manner contemplated by this Agreement and the Offering Memorandum or in connection with the initial resale of the Securities by the Initial Purchasers in accordance with Section 8 hereof, and prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement, 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 or accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act, (ii) the accuracy and completeness of the Initial Purchasers' representations in Section 8 hereof and those of the Issuer contained in the Purchase Agreement regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchasers and the initial resale thereof, (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof and (iv) the accuracy of the representations made by each Accredited Investor who purchased Securities in the initial resale as set forth in the Offering Memorandum. (xvi) As of the date hereof, none of the Securities are of the same class (within the meaning of Rule 144A under the Act) as securities of the Issuer or any Subsidiary Guarantor that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system. (xvii) Neither the sale, issuance, execution or delivery of the Notes nor the application of the net proceeds therefrom as described in the Final Memorandum under the caption "Use of Proceeds" will contravene Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall additionally state that it has participated in conferences with officers and other representatives of the Issuer, representatives of the independent public accountants for the Issuer, representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection (x), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or on the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). In rendering the foregoing opinions, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ may (i) rely, to the extent such counsel deems proper, upon the representations and certifications of officers of the Issuer and the Subsidiaries or of public officials and (ii) rely as to matters involving the application of laws of any jurisdiction other than the federal laws of the United States of America, the laws of the State of New York and the General Corporation law of the State of Delaware, to the extent such counsel deems proper and specifies in such opinion, upon the opinion of other counsel who are reasonably satisfactory to counsel for the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from Deloitte & Touche LLP, Independent Auditors, a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The representations and warranties of the Issuer 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 Issuer shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect. (e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date. (f) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), neither the Issuer nor any Subsidiary shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect. (g) The Initial Purchasers shall have received a certificate of the Issuer dated the Closing Date, signed on behalf of the Issuer by its Chairman of the Board, President or Chief Financial Officer, to the effect that: (i) The representations and warranties of the Issuer and the Subsidiary Guarantors contained in this Agreement were, on the date of the Purchase Agreement, and are, as of the date hereof, true and correct in all material respects, and the Issuer and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; (ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and (iii) The sale of the Securities hereunder has not been enjoined (temporarily or permanently). (h) On the Closing Date, the Initial Purchasers shall have received a copy of the Registration Rights Agreement, executed by the Issuer and the Subsidiary Guarantors and (assuming the due execution and delivery by other parties thereto) such agreement shall be in full force and effect at all times from and after the Closing Date. All such documents, opinions, certificates, letters,
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligations obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their 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 Purchasers Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇▇Akin, Gump, Strauss, Haue▇ & ▇eld, ▇▇▇▇.L.P., counsel for the Issuer Company and the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, to the effect that:
(i) The Issuer Each of the Company and the Subsidiary Guarantors is a corporation duly incorporated, validly existing and in good standing under the General Corporation Law 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 State of Delaware. Each Subsidiary Guarantor is a corporation existing and in good standing under the General Corporation Law of the State of DelawareCircular. Each of the Issuer Company and each the Subsidiary Guarantor 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 jurisdictions set forth on conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Schedule to such counsel's opinionMaterial Adverse Effect.
(ii) As of December 31, 1996the date thereof, the Issuer had Company has the authorized equity authorized, issued and outstanding capitalization set forth in the Final Memorandum under Capitalization. To 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's actual knowledgecounsel and except as set forth in the Circular, there are no free and clear of all liens, encumbrances, equities and claims or restrictions on transferability or voting.
(iii) Except as set forth in the Circular, to the knowledge of such counsel (A) no options, warrants or other rights to purchasepurchase 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 Issuer Company or any Subsidiary Guarantor Guarantors to issue issue, or (C) other rights to convert cause the Company or any Subsidiary Guarantors to convert, any obligation into, or exchange any securities for, shares of capital stock of in the Company or ownership interests in any of the Subsidiaries outstanding.
(iii) Each of the Issuer and each Subsidiary Guarantor has the corporate power to enter into and perform its obligations under the Operative Agreements to which it is a party, including without limitation the corporate power to issue, sell and deliver the Notes and the Guarantees, respectively, as contemplated by the Purchase Agreement.Subsidiary
(iv) The Issuer's Board of Directors has adopted by requisite vote the resolutions necessary to authorize the Issuer's execution, delivery Senior Notes have been duly and performance of the Operative Agreements to which it is a party validly authorized and the Pricing Committee appointed executed by the Issuer's Board of Directors to act with respect to this Agreement has approved Company and when delivered by requisite vote the price and interest rate set forth therein. Each Subsidiary Guarantor's Board of Directors has adopted by requisite vote the resolutions necessary to authorize such Subsidiary Guarantor's execution, delivery and performance of the Operative Agreements to which it is a party.
(v) Each of the Issuer and each Subsidiary Guarantor has duly executed and delivered this Agreement, the Indenture and the Registration Rights Agreement.
(vi) Each of this Agreement, the Indenture and the Registration Rights Agreement is a valid and binding obligation of each of the Issuer and each Subsidiary Guarantor and Company (assuming the due authorization, execution and delivery thereof by the other parties thereto) is enforceable against each of the Issuer and each Subsidiary Guarantor in accordance with its terms.
(vii) The Notes have been duly executed and delivered by the Issuer andexecution, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and the due authentication and delivery 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 Issuer, entitled to the benefits of the Indenture, and Company enforceable against the Issuer 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.
(viiiv) 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 and delivered by each of the Subsidiary Guarantors and, when the Senior Notes are duly authenticated by the Trustee in accordance with the provisions of the Indenture and validly authorized, executed, issued delivered to and authenticated paid for by the Initial Purchaser in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms hereofthis Agreement, will be constitute the valid and legally binding obligations of each of the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors in accordance with their 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
(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. The 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 IndentureWarrant 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.
(ixx) When issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the Warrants, the Warrant Shares will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights. The Warrant Shares have been duly reserved for issuance in accordance with the terms of the Warrants and the Warrant Agreement.
(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 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 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 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 Issuer Company in accordance with the terms of the Registration Rights AgreementAgreement and the Indenture, and assuming due authentication by the Trustee, the Exchange Offer Notes and Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes by the Trustee in accordance with the Indenture), the Private Exchange Notes will constitute the valid legal, valid, binding and binding enforceable obligations of the IssuerCompany, 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 enforceable against (ii) general principles of equity and the Issuer 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 their terms.
(x) The statements in the Final Memorandum under the headings "Description terms of Notes," "Description of Credit Agreement" and "Exchange Offer and Registration Rights," insofar as such statements purport to summarize certain provisions of the Indenture, the Notes, the Guarantees, the Registration Rights Agreement and the Credit Agreement 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 limitations contained in such statements, provide a fair and accurate summary in all material respects discretion of such provisions of such agreementsthe court before which any proceeding therefor may be brought.
(xixvi) The execution and delivery of this Agreement, the Registration Rights Indenture, the Warrant Agreement and the Indenture, 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 PurchasersPurchaser) do not and 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 the passage of time or both would constitute a default under) or violation of any of, of (i) the certificate of incorporation or bylaws of the Issuer or any Subsidiary Guarantor, (ii) any statute or governmental rule or regulation which, in the experience of such counsel, is normally applicable both to general business corporations that are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without such counsel having made any special investigation as to other laws and provided that such counsel need express no opinion with respect to (a) any laws, rules or regulations to which the Issuer or any Subsidiary Guarantor may be subject as a result of any of the Initial Purchasers' legal or regulatory status or the involvement of any of the Initial Purchasers in such transactions or (b) any laws, rules or regulations relating to disclosure, misrepresentations or fraud), (iii) the terms or provisions of any indenture, mortgage, deed of trust, loan agreement, note, lease, license, franchise agreement, permit, certificate, contract set forth on a Schedule or other agreement or instrument known to such counsel's opinion attached hereto, except counsel (including in any event any of the case of clauses (ii) and (iii) above) for any such conflict, breach, violation, default or event foregoing which would not, individually or in have been filed by the aggregate, reasonably be expected to have a Material Adverse Effect.Company
(xiixvii) To the actual knowledge of such counsel, no consent, waiver, approval, authorization or order of any court or governmental authority is required for the issuance and sale by the Issuer Company and the Subsidiary Guarantors of the Securities to the Initial Purchasers Purchaser or the consummation by the Issuer and the Subsidiary Guarantors of the other transactions contemplated by the Operative Agreements, except such as may be required under the Act, the Exchange Act, the TIA and the security or Blue Sky laws of the various states (and the rules and regulations thereunder), as to which such counsel need express no opinion in this paragraphhereby.
(xiii) To the actual knowledge of such counsel, no legal or governmental proceedings are pending to which the Issuer or the Subsidiary Guarantors is a party or to which the property or assets of the Issuer or the Subsidiary Guarantors is subject which seek to restrain, enjoin or prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold to the Initial Purchasers or the consummation of the other transactions contemplated by the Operative Documents.
(xiv) Neither the Issuer nor any Subsidiary Guarantor is, or immediately after the sale of the Notes to the Initial Purchasers and application of the net proceeds therefrom as described in the Offering Memorandum under the caption "Use of Proceeds" will be, an "investment company" as such term is defined in the Investment Issuer Act of 1940, as amended.
(xvxviii) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchasers in the manner Purchaser as contemplated by this Agreement and the Offering Memorandum Circular or in connection with the initial resale of the Securities by the Initial Purchasers Purchaser in accordance with Section 8 hereofof 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 StatementStatement (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 ActAct ("Accredited Investors"), or foreign purchasers (as defined in Section 8), (ii) the accuracy and completeness of the Initial Purchasers' Purchaser's representations in Section 8 hereof and those of the Issuer Company and the Subsidiary Guarantors contained in the Purchase this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchasers Purchaser and the initial resale thereof, thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof and (iv) the accuracy of the representations made by each Accredited Investor who purchased Securities in the initial resale as set forth in the Offering Memorandumhereof.
(xvixix) As Neither the consummation of the date hereof, none of the Securities are of the same class (within the meaning of Rule 144A under the Act) as securities of the Issuer or any Subsidiary Guarantor that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(xvii) Neither transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Notes nor the application of the net proceeds therefrom as described in the Final Memorandum under the caption "Use of Proceeds" Securities will contravene violate Regulation G (12 C.F.R. Part 207)G, Regulation T (12 C.F.R. Part 220)T, Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System. At .
(xx) Neither the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall additionally state that it has participated in conferences with officers and other representatives Company nor any of the Issuer, representatives of the independent public accountants Subsidiary Guarantors is an "investment company" or "promoter" or "principal underwriter" for the Issuer, 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 an "investment company" as such terms are defined in the Final Memorandum (except to the extent specified in subsection (x)Investment Company Act of 1946, no facts have come to its attention which lead it to believe that the Final Memorandumas amended, on the date thereof or on the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical rules and accounting data included in the Final Memorandum). In rendering the foregoing opinions, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ may (i) rely, to the extent such counsel deems proper, upon the representations and certifications of officers of the Issuer and the Subsidiaries or of public officials and (ii) rely as to matters involving the application of laws of any jurisdiction other than the federal laws of the United States of America, the laws of the State of New York and the General Corporation law of the State of Delaware, to the extent such counsel deems proper and specifies in such opinion, upon the opinion of other counsel who are reasonably satisfactory to counsel for the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Dateregulations thereunder.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇ ▇▇▇▇Vins▇▇ & ▇lki▇▇ ▇.▇▇▇▇.P., counsel for the Initial PurchasersPurchaser, with respect to certain legal matters relating to this Agreement and ans such other related matters as the Initial Purchasers Purchaser may reasonably 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 Purchasers Purchaser shall have received from Deloitte & Touche LLP, the Independent Auditors, Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, to the effect set forth in Exhibit C hereto.
(d) The representations and warranties of each of the Issuer 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 Issuer 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 performed complied in all covenants and material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Final Memorandum Circular (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in the Final Memorandumsuch Circular, there shall have been no event Material Adverse Change or development, and no information shall have become known, any development that, individually singly or in the aggregate, has or would be is reasonably likely to have cause a Material Adverse EffectChange.
(e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), neither the Issuer nor any Subsidiary shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Issuer dated the Closing Date, signed on behalf of the Issuer by its Chairman of the Board, President or Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuer and the Subsidiary Guarantors contained in this Agreement were, on the date of the Purchase Agreement, and are, as of the date hereof, true and correct in all material respects, and the Issuer and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received a copy of the Registration Rights Agreement, executed by the Issuer and the Subsidiary Guarantors and (assuming the due execution and delivery by other parties thereto) such agreement shall be in full force and effect at all times from and after the Closing Date. All such documents, opinions, certificates, letters,
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligations obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their 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 Purchasers Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇▇Akin, Gump, Strauss, Haue▇ & ▇eld, ▇▇▇▇.L.P., counsel for the Issuer Company and the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, to the effect that:
(i) The Issuer Each of the Company and the Subsidiary Guarantors is a corporation duly incorporated, validly existing and in good standing under the General Corporation Law 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 State of Delaware. Each Subsidiary Guarantor is a corporation existing and in good standing under the General Corporation Law of the State of DelawareFinal Circular. Each of the Issuer Company and each the Subsidiary Guarantor 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 jurisdictions set forth on conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Schedule to such counsel's opinionMaterial Adverse Effect.
(ii) As of December 31, 1996the date thereof, the Issuer had Company has the authorized equity authorized, issued and outstanding capitalization set forth in the Final Memorandum under Capitalization. To 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's actual knowledgecounsel and except as set forth in the Final Circular, there are no 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 purchasepurchase 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 Issuer Company or any Subsidiary Guarantor Guarantors to issue issue, or (C) other rights to convert 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 or ownership interests in any securities of the Subsidiaries outstanding.
(iii) Each of Company or any Subsidiary Guarantors is entitled to have such securities registered under a registration statement filed by the Issuer and each Company or any Subsidiary Guarantor has the corporate power to enter into and perform its obligations Guarantors under the Operative Agreements to which it is a party, including without limitation the corporate power to issue, sell and deliver the Notes and the Guarantees, respectively, as contemplated by the Purchase Agreement.
(iv) The Issuer's Board of Directors has adopted by requisite vote the resolutions necessary to authorize the Issuer's execution, delivery and performance of the Operative Agreements to which it is a party and the Pricing Committee appointed by the Issuer's Board of Directors to act Act with respect to this Agreement has approved by requisite vote the price and interest rate set forth therein. Each Subsidiary Guarantor's Board of Directors has adopted by requisite vote Securities or the resolutions necessary to authorize such Subsidiary Guarantor's execution, delivery and performance of the Operative Agreements to which it is a partyWarrant Shares.
(v) Each of the Issuer Subsidiary Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Guarantees. The Guarantees endorsed on each Subsidiary Guarantor has duly executed and delivered this Agreement, the Indenture and the Registration Rights Agreement.
(vi) Each of this Agreement, the Indenture and the Registration Rights Agreement is a valid and binding obligation of each of the Issuer and each Subsidiary Guarantor and (assuming the due authorization, execution and delivery thereof by the other parties thereto) is enforceable against each of the Issuer and each Subsidiary Guarantor in accordance with its terms.
(vii) The Notes Senior Note have been duly and validly authorized and executed and delivered by the Issuer and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and binding obligations of the Issuer, entitled to the benefits of the Indenture, and enforceable against the Issuer in accordance with their terms.
(viii) The Guarantees have been duly executed and delivered by each of the Subsidiary Guarantors and, when the Senior Notes are duly authenticated by the Trustee in accordance with the provisions of the Indenture and validly authorized, executed, issued delivered to and authenticated paid for by the Initial Purchaser in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms hereofthis Agreement, will be 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 IndentureWarrant 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.
(ixx) 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 Issuer Company in accordance with the terms of the Registration Rights AgreementAgreement and the Indenture, and assuming due authentication by the Trustee, the Exchange Offer Notes and Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes by the Trustee in accordance with the Indenture), the Private Exchange Notes will constitute the valid legal, valid, binding and binding enforceable obligations of the IssuerCompany, 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 enforceable against (ii) general principles of equity and the Issuer 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 their terms.
(x) The statements in the Final Memorandum under the headings "Description terms of Notes," "Description of Credit Agreement" and "Exchange Offer and Registration Rights," insofar as such statements purport to summarize certain provisions of the Indenture, the Notes, the Guarantees, the Registration Rights Agreement and the Credit Agreement 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 limitations contained in such statements, provide a fair and accurate summary in all material respects discretion of such provisions of such agreementsthe court before which any proceeding therefor may be brought.
(xixvi) The execution and delivery of this Agreement, the Registration Rights Indenture, the Warrant Agreement and the Indenture, 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 PurchasersPurchaser) do not and will not 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 the passage of time or both would constitute a default under) or violation of any of, of (i) the certificate of incorporation or bylaws of the Issuer or any Subsidiary Guarantor, (ii) any statute or governmental rule or regulation which, in the experience of such counsel, is normally applicable both to general business corporations that are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without such counsel having made any special investigation as to other laws and provided that such counsel need express no opinion with respect to (a) any laws, rules or regulations to which the Issuer or any Subsidiary Guarantor may be subject as a result of any of the Initial Purchasers' legal or regulatory status or the involvement of any of the Initial Purchasers in such transactions or (b) any laws, rules or regulations relating to disclosure, misrepresentations or fraud), (iii) the terms or provisions of any contract set forth on a Schedule to such counsel's opinion attached heretoindenture, except (in the case of clauses (ii) and (iii) above) for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.mortgage,
(xiixvii) To the actual knowledge of such counsel, no consent, waiver, approval, authorization or order of any court or governmental authority is required for the issuance and sale by the Issuer Company and the Subsidiary Guarantors of the Securities to the Initial Purchasers Purchaser or the consummation by the Issuer and the Subsidiary Guarantors of the other transactions contemplated by the Operative Agreements, except such as may be required under the Act, the Exchange Act, the TIA and the security or Blue Sky laws of the various states (and the rules and regulations thereunder), as to which such counsel need express no opinion in this paragraphhereby.
(xiii) To the actual knowledge of such counsel, no legal or governmental proceedings are pending to which the Issuer or the Subsidiary Guarantors is a party or to which the property or assets of the Issuer or the Subsidiary Guarantors is subject which seek to restrain, enjoin or prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold to the Initial Purchasers or the consummation of the other transactions contemplated by the Operative Documents.
(xiv) Neither the Issuer nor any Subsidiary Guarantor is, or immediately after the sale of the Notes to the Initial Purchasers and application of the net proceeds therefrom as described in the Offering Memorandum under the caption "Use of Proceeds" will be, an "investment company" as such term is defined in the Investment Issuer Act of 1940, as amended.
(xvxviii) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchasers in the manner Purchaser as contemplated by this Agreement and the Offering Memorandum Final Circular or in connection with the initial resale of the Securities by the Initial Purchasers Purchaser in accordance with Section 8 hereofof 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 StatementStatement (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 ActAct ("Accredited Investors"), or foreign purchasers (as defined in Section 8), (ii) the accuracy and completeness of the Initial Purchasers' Purchaser's representations in Section 8 hereof and those of the Issuer Company and the Subsidiary Guarantors contained in the Purchase this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchasers Purchaser and the initial resale thereof, thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof and (iv) the accuracy of the representations made by each Accredited Investor who purchased Securities in the initial resale as set forth in the Offering Memorandumhereof.
(xvixix) As Neither the consummation of the date hereof, none of the Securities are of the same class (within the meaning of Rule 144A under the Act) as securities of the Issuer or any Subsidiary Guarantor that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(xvii) Neither transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Notes nor the application of the net proceeds therefrom as described in the Final Memorandum under the caption "Use of Proceeds" Securities will contravene violate Regulation G (12 C.F.R. Part 207)G, Regulation T (12 C.F.R. Part 220)T, Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall additionally state that it has participated in conferences with officers and other representatives of the Issuer, representatives of the independent public accountants for the Issuer, representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection (x), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or on the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). In rendering the foregoing opinions, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ may (i) rely, to the extent such counsel deems proper, upon the representations and certifications of officers of the Issuer and the Subsidiaries or of public officials and (ii) rely as to matters involving the application of laws of any jurisdiction other than the federal laws of the United States of America, the laws of the State of New York and the General Corporation law of the State of Delaware, to the extent such counsel deems proper and specifies in such opinion, upon the opinion of other counsel who are reasonably satisfactory to counsel for the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(bxx) On Neither the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as Company nor any of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from Deloitte & Touche LLP, Independent Auditors, a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The representations and warranties of the Issuer and the Subsidiary Guarantors contained in this Agreement shall be true and correct in all material respects on and is an "investment company" or "promotor" or "principal underwriter" for an "investment company" as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the Issuer shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described such terms are defined in the Final Memorandum (exclusive Investment Company Act of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), neither the Issuer nor any Subsidiary shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Issuer dated the Closing Date, signed on behalf of the Issuer by its Chairman of the Board, President or Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuer and the Subsidiary Guarantors contained in this Agreement were, on the date of the Purchase Agreement, and are1946, as of the date hereof, true and correct in all material respectsamended, and the Issuer rules and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been enjoined (temporarily or permanently)regulations thereunder.
(h) On the Closing Date, the Initial Purchasers shall have received a copy of the Registration Rights Agreement, executed by the Issuer and the Subsidiary Guarantors and (assuming the due execution and delivery by other parties thereto) such agreement shall be in full force and effect at all times from and after the Closing Date. All such documents, opinions, certificates, letters,
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligations obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Issuer and the Subsidiary GuarantorsCompany, in form and substance satisfactory to counsel for the Initial Purchasers, to the effect that:
(i1) The Issuer Each of the Guarantors is a corporation duly incorporated, validly existing and in good standing under the General Corporation Law laws of its 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 State of Delaware. Each Subsidiary Guarantor is a corporation existing and in good standing under the General Corporation Law of the State of DelawareFinal Memorandum. Each of the Issuer Company and each Subsidiary Guarantor the 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 jurisdictions 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.
(2) Giving effect to the Transactions, the Company has the authorized capitalization, the issued and outstanding preferred stock and, to the knowledge of such counsel, the issued and outstanding common stock, in each case as set forth on a Schedule schedule attached to such opinion. All of the outstanding shares of capital stock of the Guarantors are owned, directly or indirectly, by the Company, free and clear of all perfected security interests and, to the knowledge of such counsel's opinion, 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.
(ii3) As To the knowledge of December 31, 1996, the Issuer had the authorized equity capitalization set forth in the Final Memorandum under Capitalization. To such counsel's actual knowledge, there are no (A) except as set forth on Schedule V hereto, no options, warrants or other rights to purchasepurchase from the Company or any Subsidiary shares of capital stock or ownership interests in the Company or any Subsidiary are outstanding, (B) except as set forth on Schedule V hereto, no agreements or other obligations of the Issuer Company or any Subsidiary Guarantor to issue issue, or (C) other rights to convert cause the Company or any Subsidiary to convert, any obligation into, or exchange any securities for, shares of capital stock of or ownership interests in the Company or any Subsidiary are outstanding and, (C) except as set forth on Schedule VII hereto, no holder of securities of the Subsidiaries outstanding.
Company or any Subsidiary (iiiother than the Registrable Notes) Each of the Issuer and each Subsidiary Guarantor has the corporate power is entitled to enter into and perform its obligations have such securities registered under the Operative Agreements to which it is a party, including without limitation the corporate power to issue, sell and deliver the Notes and the Guarantees, respectively, as contemplated registration statement filed by the Purchase Agreement.
(iv) The Issuer's Board of Directors has adopted by requisite vote the resolutions necessary Company pursuant to authorize the Issuer's execution, delivery and performance of the Operative Agreements to which it is a party and the Pricing Committee appointed by the Issuer's Board of Directors to act with respect to this Agreement has approved by requisite vote the price and interest rate set forth therein. Each Subsidiary Guarantor's Board of Directors has adopted by requisite vote the resolutions necessary to authorize such Subsidiary Guarantor's execution, delivery and performance of the Operative Agreements to which it is a party.
(v) Each of the Issuer and each Subsidiary Guarantor has duly executed and delivered this Agreement, the Indenture and the Registration Rights Agreement.
(vi4) Each of this Agreementthe Guarantors has all requisite corporate or partnership power and authority to execute, deliver and perform its obligations under the Indenture and the Registration Rights Agreement Guarantees; the Indenture is a valid in sufficient form for qualification under the TIA; the Indenture has been duly and binding obligation of validly authorized, executed and delivered by each of the Issuer Company and each Subsidiary Guarantor the Guarantors, and (assuming the due authorization, execution and delivery thereof by the other parties theretoTrustee) is constitutes the valid and legally binding agreement of the Company and each of the Guarantors, enforceable against each of the Issuer and each Subsidiary Guarantor 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 brought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(vii5) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized, executed and delivered by the Issuer Company and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the IssuerCompany, entitled to the benefits of the Indenture, and enforceable against the Issuer Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of 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).
(viii6) The Guarantees are in the form contemplated by the Indenture. The Guarantees have been duly and validly authorized, executed and delivered by each of Guarantor and (assuming the Subsidiary Guarantors anddue authorization, when the Notes are duly execution and validly authorized, executed, issued and authenticated in accordance with the terms delivery of the Indenture and delivered against payment therefor in accordance with by the terms hereof, will be Trustee) constitute the valid and legally binding obligations of each of the Subsidiary GuarantorsGuarantor, enforceable against each of the Subsidiary Guarantors in accordance with their terms and 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 brought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(ix7) When 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 Guarantors, as the case may be, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Issuer Company and the related guarantees have been duly executed and delivered by the Guarantors, each in accordance with the terms of the Registration Rights Agreement, Agreement and the Exchange Offer and Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), the Exchange Notes will constitute the valid and legally binding obligations of the IssuerCompany and the Guarantors, respectively, entitled to the benefits of the Indenture, and enforceable against the Issuer Company and the Guarantors, respectively, 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).
(x8) Each of the Guarantors has all requisite corporate or partnership power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized, executed and delivered by the Company and the 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 its 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 brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(9) 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 the 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 statements in the Final Memorandum under the headings "Description of Notes," "Description of Credit Agreement" and "Exchange Offer and Registration Rights," insofar as such statements purport to summarize certain provisions of the Indenture, the Notes, the Exchange Notes, the Guarantees, the Registration Rights Agreement and the Credit Agreement and subject conform as to the limitations contained in such statements, provide a fair and accurate summary legal matters in all material respects of such provisions of such agreementsto the descriptions thereof contained in the Final Memorandum.
(xi12) 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 execution 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 this Agreement, the Registration Rights Agreement and the Indenture, Transaction Documents and the consummation of the transactions contemplated thereby Transactions (including, without limitation, the issuance and sale of the Securities Notes to the Initial Purchasers) do not and will not conflict with or constitute or result in a breach or a default under (or an event which with notice or the passage of time or both would constitute a default under) or violation of or cause an acceleration of any ofobligation under, or result in the imposition or creation of (ior the obligation to create or impose) the certificate of incorporation a lien on any property or bylaws assets of the Issuer Company or any Subsidiary Guarantor, (ii) any statute or governmental rule or regulation which, in the experience of such counsel, is normally applicable both to general business corporations that are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without such counsel having made any special investigation as to other laws and provided that such counsel need express no opinion with respect to (a) any laws, rules or regulations to which the Issuer or any Subsidiary Guarantor may be subject as a result of any of the Initial Purchasers' legal or regulatory status or the involvement of any of the Initial Purchasers in such transactions or (b) any laws, rules or regulations relating to disclosure, misrepresentations or fraud), (iiii) the terms or provisions of any contract set forth on pursuant to which the Company or a Schedule Subsidiary has incurred indebtedness, any contract described in the Final Memorandum or any contract filed as an exhibit to the Incorporated Documents (such counsel's opinion attached heretocontracts, the "Material Contracts"), except (in the case of clauses (ii) and (iii) above) for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, reasonably 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 expected 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.
(xii16) To the actual knowledge of such counsel, no consent, waiver, approval, authorization or order of any court or governmental authority is required for the issuance and sale by the Issuer and the Subsidiary Guarantors Company of the Securities Notes to the Initial Purchasers or the consummation by the Issuer and the Subsidiary Guarantors of the other transactions contemplated by the Operative Agreementsin this Agreement, except such as may be required under the Act, the Exchange Act, the TIA state securities and the security or Blue Sky laws of the various states (and the rules and regulations thereunder)laws, as to which such counsel need express no opinion in this paragraphopinion, and those which have previously been obtained.
(xiii17) To the actual knowledge of such counsel, no legal the Company and the Subsidiaries have obtained all Permits necessary to conduct the businesses now or governmental proceedings are pending proposed to be conducted by them as described in the Final Memorandum, the lack of which would, individually or in the Issuer or the Subsidiary Guarantors is aggregate, have a party or to which the property or assets Material Adverse Effect; each of the Issuer 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 the Subsidiary Guarantors is subject which seek to restrainafter notice or lapse of time would allow, enjoin revocation or prevent the consummation of termination thereof or otherwise challenge the issuance or sale results in any other material impairment of the Securities to be sold to the Initial Purchasers or the consummation rights of the other transactions contemplated by the Operative Documentsholder of any such Permit, except for any such revocation or termination which would not have a Material Adverse Effect.
(xiv18) Neither None of the Issuer nor any Subsidiary Guarantor Company or the Subsidiaries is, or immediately after the sale of the Notes to be sold hereunder and the Initial Purchasers and application of the net proceeds therefrom from such sale (as described in the Offering Final Memorandum under the caption "Use of Proceeds" ") will be, an "investment company" as such term is defined in the Investment Issuer Company Act of 1940, as amended.
(xv19) No registration under the Act of the Securities Notes is required in connection with the sale of the Securities Notes to the Initial Purchasers in the manner as contemplated by this Agreement and the Offering Final Memorandum or in connection with the initial resale of the Securities Notes by the Initial Purchasers in accordance with Section 8 hereofof 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 StatementStatement (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 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 ActRegulation S, (ii) the accuracy and completeness of the Initial Purchasers' representations in Section 8 hereof and those of the Issuer Company contained in the Purchase this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities Notes to the Initial Purchasers and the initial resale thereof, thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof and (iv) the accuracy of the representations made by each Accredited Investor who purchased Securities in the initial resale as set forth in the Offering Memorandumhereof.
(xvi20) As Neither the consummation of the date hereof, none of the Securities are of the same class (within the meaning of Rule 144A under the Act) as securities of the Issuer or any Subsidiary Guarantor that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(xvii) Neither transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Notes nor the application will violate Regulation T, U or X of the net proceeds therefrom as described in the Final Memorandum under the caption "Use of Proceeds" will contravene Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall additionally state that it has participated in conferences with officers and other representatives of the Issuer, representatives of the independent public accountants for the Issuer, representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection (x), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or on the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). In rendering the foregoing opinions, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ may (i) rely, to the extent such counsel deems proper, upon the representations and certifications of officers of the Issuer and the Subsidiaries or of public officials and (ii) rely as to matters involving the application of laws of any jurisdiction other than the federal laws of the United States of America, the laws of the State of New York and the General Corporation law of the State of Delaware, to the extent such counsel deems proper and specifies in such opinion, upon the opinion of other counsel who are reasonably satisfactory to counsel for the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from Deloitte & Touche LLP, Independent Auditors, a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The representations and warranties of the Issuer 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 Issuer shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), neither the Issuer nor any Subsidiary shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Issuer dated the Closing Date, signed on behalf of the Issuer by its Chairman of the Board, President or Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuer and the Subsidiary Guarantors contained in this Agreement were, on the date of the Purchase Agreement, and are, as of the date hereof, true and correct in all material respects, and the Issuer and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received a copy of the Registration Rights Agreement, executed by the Issuer and the Subsidiary Guarantors and (assuming the due execution and delivery by other parties thereto) such agreement shall be in full force and effect at all times from and after the Closing Date. All such documents, opinions, certificates, letters,
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligations obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities Notes shall, in their 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 Purchasers Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Issuer Company and the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, to the effect that:
(i) The Issuer Each of the Company and the Guarantors is a corporation duly incorporated, validly existing and in good standing under the General Corporation Law 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 State of Delaware. Each Subsidiary Guarantor is a corporation existing and in good standing under the General Corporation Law of the State of DelawareFinal Memorandum. Each of the Issuer Company and each Subsidiary Guarantor the Guarantors is duly qualified as a foreign corporation and is in good standing in each of the jurisdictions set forth below such Guarantor's name on a Schedule A attached to such counsel's opinion.
(ii) As of December 31, 1996, The Company has the Issuer had the authorized equity capitalization set forth in the Final Memorandum under Capitalization. To Memorandum; all of the outstanding shares of capital stock 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; 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's actual knowledge, there are no 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 Memorandum, (A) no options, warrants or other rights to purchasepurchase 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 Issuer Company or any Subsidiary Guarantor to issue issue, or (C) other rights to convert cause the Company or any Guarantor to convert, any obligation into, or exchange any securities for, shares of capital stock of or ownership interests in the Company or any Guarantor are outstanding and (C) no holder of securities of the Subsidiaries outstanding.
(iii) Each of Company or any Guarantor is entitled to have such securities registered under a registration statement filed by the Issuer and each Subsidiary Guarantor has the corporate power to enter into and perform its obligations under the Operative Agreements to which it is a party, including without limitation the corporate power to issue, sell and deliver the Notes Company and the Guarantees, respectively, as contemplated by the Purchase Agreement.
(iv) The Issuer's Board of Directors has adopted by requisite vote the resolutions necessary Guarantors pursuant to authorize the Issuer's execution, delivery and performance of the Operative Agreements to which it is a party and the Pricing Committee appointed by the Issuer's Board of Directors to act with respect to this Agreement has approved by requisite vote the price and interest rate set forth therein. Each Subsidiary Guarantor's Board of Directors has adopted by requisite vote the resolutions necessary to authorize such Subsidiary Guarantor's execution, delivery and performance of the Operative Agreements to which it is a party.
(v) Each of the Issuer and each Subsidiary Guarantor has duly executed and delivered this Agreement, the Indenture and the Registration Rights Agreement.
(viiv) Each of this Agreementthe Company and the Guarantors has all requisite corporate power and authority to execute, deliver and perform its respective obligations under the Indenture, the Indenture Notes, the Exchange Securities and the Registration Rights Agreement Private Exchange Securities; the Indenture is a valid in sufficient form for qualification under the TIA; the Indenture has been duly and binding obligation of validly authorized by the Company and the Guarantors and, when duly executed and delivered by the Company and each of the Issuer and each Subsidiary Guarantor and Guarantors (assuming the due authorization, execution and delivery thereof by the other parties thereto) is enforceable against Trustee), will constitute the valid and legally binding agreement of the Company and each of the Issuer Guarantors, enforceable against the Company and each Subsidiary Guarantor of the Guarantors in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(viiv) The Notes have 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 Issuer and, when Company and each of the Guarantors and paid for by the Initial Purchasers Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the IssuerCompany and each of the Guarantors, entitled to the benefits of the Indenture, and enforceable against the Issuer 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.
(viiivi) The Guarantees Exchange Securities and the Private Exchange Securities have been duly executed and delivered validly authorized by the Company and each of the Subsidiary Guarantors andGuarantors, and when the Notes are duly Exchange Securities and validly authorized, executed, issued and authenticated in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms hereof, will be the valid and binding obligations of each of the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors in accordance with their terms and entitled to the benefits of the Indenture.
(ix) When the Private Exchange Notes Securities have been duly executed and delivered by the Issuer Company and each of the Guarantors in accordance with the terms of the Registration Rights Agreement, Agreement and the Exchange Offer and Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes Securities and the Private Exchange Securities by the Trustee in accordance with the Indenture), the Exchange Notes will constitute the valid and legally binding obligations of the IssuerCompany and each of the Guarantors, entitled to the benefits of the Indenture, and enforceable against the Issuer 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.
(vii) Each of the Company and the Guarantors have all requisite corporate power and authority to execute, deliver and perform their obligations under the Registration Rights Agreement; the Registration Rights Agreement 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 (assuming due authorization, execution and delivery thereof by the Initial Purchaser), will constitute the valid and legally binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with their terms, except that (A) 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 and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(viii) Each of the Company and the 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 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.
(ix) The Indenture, the Notes, the Exchange Securities and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum.
(x) The statements No legal or governmental proceedings are pending or, to the knowledge of such counsel, threatened to which any of the Company or the Guarantors is a party or to which the property or assets of the Company or any Guarantor is subject which, if determined adversely to the Company or the Guarantors, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Final Memorandum under the headings caption "Description Use of Notes," Proceeds."Description of Credit Agreement" and "Exchange Offer and Registration Rights," insofar as such statements purport to summarize certain provisions
(xi) None of the Indenture, Company or the Notes, the Guarantees, the Registration Rights Agreement and the Credit Agreement and subject Guarantors is (i) in violation of its certificate of incorporation or bylaws (or similar organizational document) or (ii) to the limitations contained in such statements, provide a fair and accurate summary in all material respects knowledge of such provisions counsel, in breach or violation of such agreementsany judgment, decree or order applicable to any of them or any of their respective properties or assets.
(xixii) The execution and delivery of this Agreement, the Indenture, the Registration Rights Agreement and the Indenture, and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities Notes to the Initial PurchasersPurchaser) do not and the retention by the Company of BTSC pursuant to the BTSC Engagement Letter and BTSC's acting as contemplated hereby and thereby, will not conflict with or constitute or result in a breach or a default under (or an event which with notice or the passage of time or both would constitute a default under) or violation of any ofof (i) the terms or provisions of any Contract known to such counsel (which Contracts are listed on Schedule B attached to such opinion), (iii) the certificate of incorporation or bylaws (or similar organizational document) of the Issuer Company or any Subsidiary Guarantorof the Guarantors, or (iiiii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof) any statute or governmental statute, judgment, decree, order, rule or regulation which, in the experience of such counsel's experience, is normally applicable both to general business corporations that which are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without such counsel our having made any special investigation as to other laws and provided that such counsel need express no opinion with respect to (a) any laws, rules or regulations to which the Issuer or any Subsidiary Guarantor may be subject as a result of any of the Initial Purchasers' legal or regulatory status or the involvement of any of the Initial Purchasers in such transactions or (b) any laws, rules or regulations relating to disclosure, misrepresentations or fraud), (iii) the terms or provisions of any contract set forth on a Schedule to such counsel's opinion attached hereto, except (in the case of clauses (ii) and (iii) above) for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xiixiii) To the actual knowledge of such counsel, no consent, waiver, approval, authorization or order of any court or governmental authority is required for the issuance and sale by the Issuer and the Subsidiary Guarantors Company of the Securities Notes to the Initial Purchasers Purchaser or the consummation by the Issuer and the Subsidiary Guarantors of the other transactions contemplated by the Operative Agreementshereby, except such as may be required under the Act, the Exchange Act, the TIA and the security or Blue Sky laws of the various states (and the rules and regulations thereunder)laws, as to which such counsel need express no opinion in this paragraphopinion, and those which have previously been obtained.
(xiiixiv) To the actual knowledge best of such counsel's knowledge, there are no legal or governmental proceedings are pending to which involving or affecting the Issuer Company or the Subsidiary Guarantors is a party or to which the property any of their respective properties or assets of the Issuer or the Subsidiary Guarantors is subject which seek to restrain, enjoin or prevent the consummation of or otherwise challenge the issuance or sale of the Securities would be required to be sold described in a prospectus pursuant to the Initial Purchasers 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 consummation of Act that are not described in the other transactions contemplated by the Operative DocumentsFinal Memorandum.
(xivxv) Neither None of the Issuer nor any Subsidiary Guarantor Company or the Guarantors is, or immediately after the sale of the Notes to be sold hereunder and the Initial Purchasers and application of the net proceeds therefrom from such sale (as described in the Offering Final Memorandum under the caption "Use of Proceeds" ") will be, an "investment company" as such term is defined in the Investment Issuer Company Act of 1940, as amended.
(xvxvi) No registration under the Act of the Securities Notes is required in connection with the sale of the Securities Notes to the Initial Purchasers in the manner Purchaser as contemplated by this Agreement and the Offering Final Memorandum or in connection with the initial resale of the Securities Notes by the Initial Purchasers Purchaser in accordance with Section 8 hereofof 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 StatementStatement (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 accredited investors as defined in Rule 501(a)(1501(a) (1), (2), (3) or (7) promulgated under the ActAct ("Accredited Investors"), (ii) the accuracy and completeness of the Initial Purchasers' Purchaser's representations in Section 8 hereof and those of the Issuer Company and the Guarantors contained in the Purchase this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities Notes to the Initial Purchasers Purchaser and the initial resale thereof, thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof and (iv) the accuracy of the representations made by each Accredited Investor who purchased Securities in the initial resale as set forth in the Offering Memorandum.
(xvi) As of the date hereof, none of the Securities are of the same class (within the meaning of Rule 144A under the Act) as securities of the Issuer or any Subsidiary Guarantor that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(xvii) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Notes nor the application of the net proceeds therefrom as described in the Final Memorandum under the caption "Use of Proceeds" will contravene violate Regulation G (12 C.F.R. Part 207)G, Regulation T (12 C.F.R. Part 220)T, Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
(xviii) To the knowledge of such counsel, none of the Company 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 Notes and, except for the fees and expenses payable in connection with the issuance of the Notes as described in the Final Memorandum no person has the right to receive a material amount of financial advisory, underwriting, placement, finder's or similar fees in connection with, or as a result of, the issuance of the Notes and the 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 other representatives of the IssuerCompany and the Guarantors, representatives of the independent public accountants for the IssuerCompany and Guarantors, representatives of the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection (x)Memorandum, no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or on 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 the foregoing opinionssuch opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have received and may (i) rely, 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 extent such counsel deems proper, upon Initial Purchaser at the representations and certifications of officers request of the Issuer Company and the Subsidiaries or of public officials Guarantors and (ii) rely as to matters involving the application of laws of any jurisdiction other than the federal laws of the United States of America, the laws of the State of New York and the General Corporation law of the State of Delaware, to the extent such counsel deems proper and specifies in such opinion, upon the opinion of other counsel who are reasonably satisfactory to counsel for the Initial Purchasersshall 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 Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇Case, counsel for the Initial PurchasersPurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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 Purchasers Purchaser shall have received from Deloitte & Touche LLP, the Independent Auditors, a Accountants comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser.
(d) The representations and warranties of the Issuer 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 Issuer shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), neither the Issuer nor any Subsidiary shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Issuer dated the Closing Date, signed on behalf of the Issuer by its Chairman of the Board, President or Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuer and the Subsidiary Guarantors contained in this Agreement were, on the date of the Purchase Agreement, and are, as of the date hereof, true and correct in all material respects, and the Issuer and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received a copy of the Registration Rights Agreement, executed by the Issuer and the Subsidiary Guarantors and (assuming the due execution and delivery by other parties thereto) such agreement shall be in full force and effect at all times from and after the Closing Date. All such documents, opinions, certificates, letters,
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligations obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their 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 Purchasers Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇▇Akin, Gump, Strauss, Haue▇ & ▇eld, ▇▇▇▇.L.P., counsel for the Issuer Company and the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, to the effect that:
(i) The Issuer Each of the Company and the Subsidiary Guarantors is a corporation duly incorporated, validly existing and in good standing under the General Corporation Law 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 State of Delaware. Each Subsidiary Guarantor is a corporation existing and in good standing under the General Corporation Law of the State of DelawareFinal Circular. Each of the Issuer Company and each the Subsidiary Guarantor 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 jurisdictions set forth on conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Schedule to such counsel's opinionMaterial Adverse Effect.
(ii) As of December 31, 1996the date thereof, the Issuer had Company has the authorized equity authorized, issued and outstanding capitalization set forth in the Final Memorandum under Capitalization. To 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's actual knowledgecounsel and except as set forth in the Final Circular, there are no 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 purchasepurchase 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 Issuer Company or any Subsidiary Guarantor Guarantors to issue issue, or (C) other rights to convert 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 or ownership interests in any securities of the Subsidiaries outstanding.
(iii) Each of Company or any Subsidiary Guarantors is entitled to have such securities registered under a registration statement filed by the Issuer and each Company or any Subsidiary Guarantor has the corporate power to enter into and perform its obligations Guarantors under the Operative Agreements Act with respect to which it is a party, including without limitation the corporate power to issue, sell and deliver the Notes and the Guarantees, respectively, as contemplated by the Purchase AgreementSecurities.
(iv) The Issuer's Board of Directors has adopted by requisite vote the resolutions necessary to authorize the Issuer's execution, delivery Senior Notes have been duly and performance of the Operative Agreements to which it is a party validly authorized and the Pricing Committee appointed executed by the Issuer's Board of Directors to act with respect to this Agreement has approved Company and when delivered by requisite vote the price and interest rate set forth therein. Each Subsidiary Guarantor's Board of Directors has adopted by requisite vote the resolutions necessary to authorize such Subsidiary Guarantor's execution, delivery and performance of the Operative Agreements to which it is a party.
(v) Each of the Issuer and each Subsidiary Guarantor has duly executed and delivered this Agreement, the Indenture and the Registration Rights Agreement.
(vi) Each of this Agreement, the Indenture and the Registration Rights Agreement is a valid and binding obligation of each of the Issuer and each Subsidiary Guarantor and Company (assuming the due authorization, execution and delivery thereof by the other parties thereto) is enforceable against each of the Issuer and each Subsidiary Guarantor in accordance with its terms.
(vii) The Notes have been duly executed and delivered by the Issuer andexecution, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and the due authentication and delivery 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 Issuer, entitled to the benefits of the Indenture, and Company enforceable against the Issuer 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.
(viiiv) 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 and delivered by each of the Subsidiary Guarantors and, when the Senior Notes are duly authenticated by the Trustee in accordance with the provisions of the Indenture and validly authorized, executed, issued delivered to and authenticated paid for by the Initial Purchaser in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms hereofthis Agreement, will be constitute the valid and legally binding obligations of each of the Subsidiary Guarantors, enforceable against each of the Subsidiary Guarantors in accordance with their terms 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 entitled to (ii) general principles of equity and the benefits 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 Agreement; the Registration Rights 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 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 (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(viii) Each of the 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.
(ix) When The Indenture, the Senior Notes, the Guarantees and the Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Final Circular.
(x) 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."
(xi) 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 Issuer Company in accordance with the terms of the Registration Rights AgreementAgreement and the Indenture, and assuming due authentication by the Trustee, the Exchange Offer Notes and Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes by the Trustee in accordance with the Indenture), the Private Exchange Notes will constitute the valid legal, valid, binding and binding enforceable obligations of the IssuerCompany, 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 enforceable against (ii) general principles of equity and the Issuer discretion of the court before which any proceeding therefor may be brought.
(xii) 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 their terms.
(x) The statements in the Final Memorandum under the headings "Description terms of Notes," "Description of Credit Agreement" and "Exchange Offer and Registration Rights," insofar as such statements purport to summarize certain provisions of the Indenture, the Notes, the Guarantees, the Registration Rights Agreement and the Credit Agreement 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 limitations contained in such statements, provide a fair and accurate summary in all material respects discretion of such provisions of such agreementsthe court before which any proceeding therefor may be brought.
(xixiii) The execution and delivery of this Agreement, the Indenture and the Registration Rights Agreement and the Indenture, and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities to the Initial PurchasersPurchaser) do not and 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 the passage of time or both would constitute a default under) or violation of any of, of (i) the certificate of incorporation or bylaws of the Issuer or any Subsidiary Guarantor, (ii) any statute or governmental rule or regulation which, in the experience of such counsel, is normally applicable both to general business corporations that are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without such counsel having made any special investigation as to other laws and provided that such counsel need express no opinion with respect to (a) any laws, rules or regulations to which the Issuer or any Subsidiary Guarantor may be subject as a result of any of the Initial Purchasers' legal or regulatory status or the involvement of any of the Initial Purchasers in such transactions or (b) any laws, rules or regulations relating to disclosure, misrepresentations or fraud), (iii) the terms or provisions of any indenture, mortgage, deed of trust, loan agreement, note, lease, license, franchise agreement, permit, certificate, contract set forth on a Schedule or other agreement or instrument known to such counsel's opinion attached heretocounsel (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 (in the case of clauses (ii) and (iii) above) for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, reasonably 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 expected 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.
(xiixiv) To the actual knowledge of such counsel, no consent, waiver, approval, authorization or order of any court or governmental authority is required for the issuance and sale by the Issuer Company and the Subsidiary Guarantors of the Securities to the Initial Purchasers Purchaser or the consummation by the Issuer and the Subsidiary Guarantors of the other transactions contemplated by the Operative Agreements, except such as may be required under the Act, the Exchange Act, the TIA and the security or Blue Sky laws of the various states (and the rules and regulations thereunder), as to which such counsel need express no opinion in this paragraph.
(xiii) To the actual knowledge of such counsel, no legal or governmental proceedings are pending to which the Issuer or the Subsidiary Guarantors is a party or to which the property or assets of the Issuer or the Subsidiary Guarantors is subject which seek to restrain, enjoin or prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold to the Initial Purchasers or the consummation of the other transactions contemplated by the Operative Documents.
(xiv) Neither the Issuer nor any Subsidiary Guarantor is, or immediately after the sale of the Notes to the Initial Purchasers and application of the net proceeds therefrom as described in the Offering Memorandum under the caption "Use of Proceeds" will be, an "investment company" as such term is defined in the Investment Issuer Act of 1940, as amendedhereby.
(xv) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchasers in the manner Purchaser as contemplated by this Agreement and the Offering Memorandum Final Circular or in connection with the initial resale of the Securities by the Initial Purchasers Purchaser in accordance with Section 8 hereofof 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 StatementStatement (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 ActAct ("Accredited Investors"), or foreign purchasers (as defined in Section 8), (ii) the accuracy and completeness of the Initial Purchasers' Purchaser's representations in Section 8 hereof and those of the Issuer Company and the Subsidiary Guarantors contained in the Purchase this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchasers Purchaser and the initial resale thereof, thereof and (iii) the due performance by the Initial Purchasers Purchaser of the agreements set forth in Section 8 hereof and (iv) the accuracy of the representations made by each Accredited Investor who purchased Securities in the initial resale as set forth in the Offering Memorandumhereof.
(xvi) As Neither the consummation of the date hereof, none of the Securities are of the same class (within the meaning of Rule 144A under the Act) as securities of the Issuer or any Subsidiary Guarantor that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(xvii) Neither transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Notes nor the application of the net proceeds therefrom as described in the Final Memorandum under the caption "Use of Proceeds" Securities will contravene violate Regulation G (12 C.F.R. Part 207)G, Regulation T (12 C.F.R. Part 220)T, Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
(xvii) Neither the Company nor any of the Subsidiary Guarantors is an "investment company" or "promoter" 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 IssuerCompany and the Subsidiary Guarantors, representatives of the independent public accountants for the IssuerCompany, representatives of the Initial Purchasers Purchaser and counsel for the Initial PurchasersPurchaser, at which conferences the contents of the Final Memorandum 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 Memorandum Circular (except to the extent specified in subsection 7(a)(ii) and (xix)), no facts have come to its attention which lead it to believe that the Final MemorandumCircular, on the date thereof or on 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, financial or statistical and accounting data included in the Final MemorandumCircular). In rendering the foregoing opinionsThe opinion of Akin, ▇▇▇▇▇▇▇Gump, Strauss, Haue▇ & ▇eld, ▇▇▇▇ may (i) rely, to the extent such counsel deems proper, upon the representations and certifications of officers of the Issuer and the Subsidiaries or of public officials and (ii) rely as to matters involving the application of laws of any jurisdiction other than the federal laws of the United States of America, the laws of the State of New York and the General Corporation law of the State of Delaware, to the extent such counsel deems proper and specifies in such opinion, upon the opinion of other counsel who are reasonably satisfactory to counsel for the Initial Purchasers. References to the Final Memorandum .L.P. described in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with be rendered to the provisions of this Agreement Initial Purchaser at the Closing Daterequest of the Company and the Subsidiary Guarantors and shall so state therein.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇ ▇▇▇▇Vins▇▇ & ▇lki▇▇ ▇.▇▇▇▇.P., counsel for the Initial PurchasersPurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇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 Purchasers Purchaser shall have received from Deloitte & Touche LLP, the Independent Auditors, Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, to the effect set forth in Exhibit B hereto.
(d) The representations and warranties of each of the Issuer 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 Issuer shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), neither the Issuer nor any Subsidiary shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Issuer dated the Closing Date, signed on behalf of the Issuer by its Chairman of the Board, President or Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuer and the Subsidiary Guarantors contained in this Agreement were, on the date of the Purchase Agreement, and are, as of the date hereof, true and correct in all material respects, and the Issuer and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received a copy of the Registration Rights Agreement, executed by the Issuer and the Subsidiary Guarantors and (assuming the due execution and delivery by other parties thereto) such agreement shall be in full force and effect at all times from and after the Closing Date. All such documents, opinions, certificates, letters,C
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligations obligation ------------------------------------------------- of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their 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 Purchasers Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of ▇▇▇▇▇▇, ▇'▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Issuer Company and the Subsidiary Guarantors, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, to the effect that:
(i) The Issuer Each of the Company, the Subsidiary Guarantors and the Founding Companies is a corporation duly incorporated, validly existing and in good standing under the General Corporation Law 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 State of Delaware. Each Subsidiary Guarantor is a corporation existing and in good standing under the General Corporation Law of the State of DelawareFinal Circular. Each of the Issuer Company, the Subsidiary Guarantors and each Subsidiary Guarantor 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 jurisdictions set forth on conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Schedule to such counsel's opinionMaterial 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 December 31, 1996the date thereof, the Issuer had Company and the authorized equity Subsidiary Guarantors have the authorized, issued and outstanding capitalization set forth in the Final Memorandum under Capitalization. To Circular; all of the outstanding shares of capital stock of the Subsidiary Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable and are directly owned by the Company, and, to the knowledge of such counsel's actual knowledgecounsel and except as set forth in the Final Circular, there are no free and clear of all liens, encumbrances, equities and claims or restrictions on transferability or voting.
(iv) Except as set forth in the Final Circular, to the knowledge of such counsel (A) no options, warrants or other rights to purchasepurchase 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 Issuer Company or any Subsidiary Guarantor Guarantors to issue issue, or (C) other rights to convert 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 or ownership interests in any securities of the Subsidiaries outstanding.
(iii) Each of Company or any Subsidiary Guarantors is entitled to have such securities registered under a registration statement filed by the Issuer and each Company or any Subsidiary Guarantor has the corporate power to enter into and perform its obligations Guarantors under the Operative Agreements to which it is a party, including without limitation the corporate power to issue, sell and deliver the Notes and the Guarantees, respectively, as contemplated by the Purchase Agreement.
(iv) The Issuer's Board of Directors has adopted by requisite vote the resolutions necessary to authorize the Issuer's execution, delivery and performance of the Operative Agreements to which it is a party and the Pricing Committee appointed by the Issuer's Board of Directors to act Act with respect to this Agreement has approved by requisite vote the price and interest rate set forth therein. Each Subsidiary Guarantor's Board of Directors has adopted by requisite vote Securities or the resolutions necessary to authorize such Subsidiary Guarantor's execution, delivery and performance of the Operative Agreements to which it is a partyWarrant Shares.
(v) Each merger contemplated by the Acquisition Agreements has become effective pursuant to the laws of the Issuer jurisdiction of organization of each applicable Founding Company and each corresponding Acquisition Subsidiary Guarantor has duly executed and delivered this Agreement, the Indenture and the Registration Rights AgreementCompany 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) Each of this Agreement, The Senior Notes have been duly and validly authorized and executed by the Indenture Company and when delivered by the Registration Rights Agreement is a valid and binding obligation of each of the Issuer and each Subsidiary Guarantor and Company (assuming the due authorization, execution and delivery thereof by the other parties thereto) is enforceable against each of the Issuer and each Subsidiary Guarantor in accordance with its terms.
(vii) The Notes have been duly executed and delivered by the Issuer andexecution, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and the due authentication and delivery 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 Issuer, entitled to the benefits of the Indenture, and Company enforceable against the Issuer 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.
(viiivii) 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 and delivered by each of the Subsidiary Guarantors and, when the Senior Notes are duly authenticated by the Trustee in accordance with the provisions of the Indenture and validly authorized, executed, issued delivered to and authenticated paid for by the Initial Purchaser in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms hereofthis Agreement, will be 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, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(viii) Each of the Company 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.
(ix) 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 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.
(x) 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.
(xi) 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 IndentureWarrant 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.
(ixxii) 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.
(xiii) 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 the Subsidiary Guarantors. This Agreement has been duly executed and delivered by each of the Company and the Subsidiary Guarantors.
(xiv) 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.
(xv) To the knowledge of such counsel 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 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."
(xvi) 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 Issuer Company in accordance with the terms of the Registration Rights AgreementAgreement and the Indenture, and assuming due authentication by the Trustee, the Exchange Offer Notes and Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes by the Trustee in accordance with the Indenture), the Private Exchange Notes will constitute the valid legal, valid, binding and binding enforceable obligations of the IssuerCompany, entitled to the benefits of the Indenture, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, fraudulent conveyance and enforceable against 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 Issuer discretion of the court before which any proceeding therefor may be brought.
(xvii) 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 their terms.
(x) The statements in the Final Memorandum under the headings "Description terms of Notes," "Description of Credit Agreement" and "Exchange Offer and Registration Rights," insofar as such statements purport to summarize certain provisions of the Indenture, the Notes, the Guarantees, the Registration Rights Agreement and the Credit Agreement 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 limitations contained in such statements, provide a fair and accurate summary in all material respects discretion of such provisions of such agreementsthe court before which any proceeding therefor may be brought.
(xixviii) The execution and delivery of this Agreement, the Registration Rights Indenture, the Warrant Agreement and the IndentureRegistration Rights 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 PurchasersPurchaser) do not and 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 the passage of time or both would constitute a default under) or violation of any of, of (i) the certificate of incorporation or bylaws of the Issuer or any Subsidiary Guarantor, (ii) any statute or governmental rule or regulation which, in the experience of such counsel, is normally applicable both to general business corporations that are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without such counsel having made any special investigation as to other laws and provided that such counsel need express no opinion with respect to (a) any laws, rules or regulations to which the Issuer or any Subsidiary Guarantor may be subject as a result of any of the Initial Purchasers' legal or regulatory status or the involvement of any of the Initial Purchasers in such transactions or (b) any laws, rules or regulations relating to disclosure, misrepresentations or fraud), (iii) the terms or provisions of any indenture, mortgage, deed of trust, loan agreement, note, lease, license, franchise agreement, permit, certificate, contract set forth on a Schedule or other agreement or instrument known to such counsel's opinion attached heretocounsel (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 (in the case of clauses (ii) and (iii) above) for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, reasonably 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 expected 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.
(xiixix) To the actual knowledge of such counsel, no consent, waiver, approval, authorization or order of any court or governmental authority is required for the issuance and sale by the Issuer Company and the Subsidiary Guarantors of the Securities to the Initial Purchasers Purchaser or the consummation by the Issuer and the Subsidiary Guarantors of the other transactions contemplated by the Operative Agreements, except such as may be required under the Act, the Exchange Act, the TIA and the security or Blue Sky laws of the various states (and the rules and regulations thereunder), as to which such counsel need express no opinion in this paragraphhereby.
(xiii) To the actual knowledge of such counsel, no legal or governmental proceedings are pending to which the Issuer or the Subsidiary Guarantors is a party or to which the property or assets of the Issuer or the Subsidiary Guarantors is subject which seek to restrain, enjoin or prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold to the Initial Purchasers or the consummation of the other transactions contemplated by the Operative Documents.
(xiv) Neither the Issuer nor any Subsidiary Guarantor is, or immediately after the sale of the Notes to the Initial Purchasers and application of the net proceeds therefrom as described in the Offering Memorandum under the caption "Use of Proceeds" will be, an "investment company" as such term is defined in the Investment Issuer Act of 1940, as amended.
(xvxx) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchasers in the manner Purchaser as contemplated by this Agreement and the Offering Memorandum Final Circular or in connection with the initial resale of the Securities by the Initial Purchasers in accordance with Section 8 hereof, and prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration Statement, 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 or accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act, (ii) the accuracy and completeness of the Initial Purchasers' representations in Section 8 hereof and those of the Issuer contained in the Purchase Agreement regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchasers and the initial resale thereof, (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof and (iv) the accuracy of the representations made by each Accredited Investor who purchased Securities in the initial resale as set forth in the Offering Memorandum.
(xvi) As of the date hereof, none of the Securities are of the same class (within the meaning of Rule 144A under the Act) as securities of the Issuer or any Subsidiary Guarantor that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(xvii) Neither the sale, issuance, execution or delivery of the Notes nor the application of the net proceeds therefrom as described in the Final Memorandum under the caption "Use of Proceeds" will contravene Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System. At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall additionally state that it has participated in conferences with officers and other representatives of the Issuer, representatives of the independent public accountants for the Issuer, representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection (x), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or on the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading (it being understood that such firm need express no opinion with respect to the financial statements and related notes thereto and the other financial, statistical and accounting data included in the Final Memorandum). In rendering the foregoing opinions, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ may (i) rely, to the extent such counsel deems proper, upon the representations and certifications of officers of the Issuer and the Subsidiaries or of public officials and (ii) rely as to matters involving the application of laws of any jurisdiction other than the federal laws of the United States of America, the laws of the State of New York and the General Corporation law of the State of Delaware, to the extent such counsel deems proper and specifies in such opinion, upon the opinion of other counsel who are reasonably satisfactory to counsel for the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from Deloitte & Touche LLP, Independent Auditors, a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The representations and warranties of the Issuer 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 Issuer shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), neither the Issuer nor any Subsidiary shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Issuer dated the Closing Date, signed on behalf of the Issuer by its Chairman of the Board, President or Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuer and the Subsidiary Guarantors contained in this Agreement were, on the date of the Purchase Agreement, and are, as of the date hereof, true and correct in all material respects, and the Issuer and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received a copy of the Registration Rights Agreement, executed by the Issuer and the Subsidiary Guarantors and (assuming the due execution and delivery by other parties thereto) such agreement shall be in full force and effect at all times from and after the Closing Date. All such documents, opinions, certificates, letters,
Appears in 1 contract
Sources: Purchase Agreement (Call Points Inc)
Conditions of the Initial Purchasers’ Obligations. The obligations obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇Shereff, Friedman, Hoff▇▇▇ & ▇▇ood▇▇▇, ▇▇P, counsel for the Issuer and the Subsidiary GuarantorsCompany, in form and substance satisfactory to counsel for the Initial Purchasers, to the effect that:
(i) The Issuer Each of the Company and the Guarantors is a corporation duly incorporated, validly existing and in good standing under the General Corporation Law laws of its 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 State of Delaware. Each Subsidiary Guarantor is a corporation existing and in good standing under the General Corporation Law of the State of DelawareFinal Memorandum. Each of the Issuer Company and each Subsidiary Guarantor the 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 jurisdictions set forth on conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Schedule to such counsel's opinionMaterial Adverse Effect.
(ii) As of December 31, 1996, the Issuer had The Company has the authorized equity capitalization as set forth in the Final Memorandum under Capitalization. Memorandum; all of the outstanding shares of capital stock of the Subsidiaries are owned, directly or indirectly, by the Company, 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) To the knowledge of such counsel's actual knowledge, there are no except as set forth in the Final Memorandum, (A) no options, warrants or other rights to purchasepurchase from the Company or any Subsidiary shares of capital stock or ownership interests in the Company or any Subsidiary are outstanding (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 Issuer Company or any Subsidiary Guarantor to issue issue, or (C) other rights to convert cause the Company or any Subsidiary to convert, any obligation into, or exchange any securities for, shares of capital stock of or ownership interests in the Company or any Subsidiary are outstanding and, (C) no holder of securities of the Subsidiaries outstandingCompany or any Subsidiary (other than the Registrable Notes) is entitled to have such securities registered under a registration statement filed by the Company pursuant to the Registration Rights Agreement (other than as set forth on Exhibit A hereto).
(iiiiv) Each of the Issuer and each Subsidiary Guarantor Guarantors has the all requisite corporate power and authority to enter into execute, deliver and perform its obligations under the Operative Agreements to which it is a party, including without limitation the corporate power to issue, sell and deliver the Notes Indenture and the Guarantees; the Indenture is in sufficient form for qualification under the TIA; the Indenture has been duly and validly authorized, respectively, as contemplated by the Purchase Agreement.
(iv) The Issuer's Board of Directors has adopted by requisite vote the resolutions necessary to authorize the Issuer's execution, delivery and performance of the Operative Agreements to which it is a party and the Pricing Committee appointed by the Issuer's Board of Directors to act with respect to this Agreement has approved by requisite vote the price and interest rate set forth therein. Each Subsidiary Guarantor's Board of Directors has adopted by requisite vote the resolutions necessary to authorize such Subsidiary Guarantor's execution, delivery and performance of the Operative Agreements to which it is a party.
(v) Each of the Issuer and each Subsidiary Guarantor has duly executed and delivered this Agreement, the Indenture and the Registration Rights Agreement.
(vi) Each of this Agreement, the Indenture and the Registration Rights Agreement is a valid and binding obligation of by each of the Issuer Company and each Subsidiary Guarantor the Guarantors, and (assuming the due authorization, execution and delivery thereof by the other parties theretoTrustee) is constitutes the valid and legally binding agreement of the Company and each of the Guarantors, enforceable against each of the Issuer and each Subsidiary Guarantor 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 brought (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(viiv) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized, executed and delivered by the Issuer Company and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the IssuerCompany, entitled to the benefits of the Indenture, and enforceable against the Issuer Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights 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).
(viiivi) 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 Subsidiary Guarantors and, when Indenture by the Trustee and due authentication and delivery of the Notes are duly and validly authorized, executed, issued and authenticated by the Trustee in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms hereof, will be Indenture) constitute the valid and legally binding obligations of each of the Subsidiary GuarantorsGuarantor, enforceable against each of the Subsidiary Guarantors in accordance with their terms and 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 brought (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.
(ixvii) When 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 Guarantors, as the case may be, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Issuer Company and the Guarantees have been duly executed and delivered by the Guarantors, each in accordance with the terms of the Registration Rights Agreement, Agreement and the Exchange Offer and Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), the Exchange Notes will constitute the valid and legally binding obligations of the IssuerCompany and the Guarantors, respectively, entitled to the benefits of the Indenture, and enforceable against the Issuer Company and the Guarantors, respectively, 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).
(viii) Each of the Company and the Guarantors has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized, executed and delivered by the Company and the 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 its 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 brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(ix) Each of the Company and the 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 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.
(x) The statements in the Final Memorandum under the headings "Description of Notes," "Description of Credit Agreement" and "Exchange Offer and Registration Rights," insofar as such statements purport to summarize certain provisions of the Indenture, the Notes, the GuaranteesExchange Notes, the Guarantees and the Registration Rights Agreement and the Credit Agreement and subject conform as to the limitations contained in such statements, provide a fair and accurate summary legal matters in all material respects of such provisions of such agreementsto the descriptions thereof contained in the Final Memorandum.
(xi) 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 Registration Rights Agreement and the IndentureAgreement, and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Securities Notes to the Initial Purchasers) do not the consummation of the JPS Acquisition and the amendment to the Credit Agreement will not conflict with or constitute or result in a breach or a default under (or an event which with notice or the passage of time or both would constitute a default under) or violation of or cause an acceleration of any ofobligation under, or result in the imposition or creation of (ior the obligation to create or impose) the certificate of incorporation a lien on any property or bylaws assets of the Issuer Company or any Subsidiary Guarantor, (ii) any statute or governmental rule or regulation which, in the experience of such counsel, is normally applicable both to general business corporations that are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without such counsel having made any special investigation as to other laws and provided that such counsel need express no opinion Guarantor with respect to (a) any laws, rules or regulations to which the Issuer or any Subsidiary Guarantor may be subject as a result of any of the Initial Purchasers' legal or regulatory status or the involvement of any of the Initial Purchasers in such transactions or (b) any laws, rules or regulations relating to disclosure, misrepresentations or fraud), (iiii) the terms or provisions of any of the terms or provisions of any contract set forth on a Schedule to described in the Final Memorandum (such counsel's opinion attached heretocontracts, the "Material Contracts"), except (in the case of clauses (ii) and (iii) above) for any such conflict, breach, violation, default or event which would not, individually or in the aggregate, reasonably 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 expected 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.
(xiixiv) To the actual knowledge of such counsel, no consent, waiver, approval, authorization or order of any court or governmental authority is required for the issuance and sale by the Issuer and the Subsidiary Guarantors Company of the Securities Notes to the Initial Purchasers or the consummation by the Issuer and the Subsidiary Guarantors of the other transactions contemplated by the Operative Agreementsin 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 the Act, the Exchange Act, the TIA and the security state securities or Blue Sky laws of the various states (and the rules and regulations thereunder)blue sky laws, as to which such counsel need express no opinion in this paragraphopinion, or (x) as would not, if not obtained, have a Material Adverse Effect.
(xiiixv) To None of the actual knowledge of such counsel, no legal or governmental proceedings are pending to which the Issuer Company or the Subsidiary Guarantors is a party or to which the property or assets of the Issuer or the Subsidiary Guarantors is subject which seek to restrain, enjoin or prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold to the Initial Purchasers or the consummation of the other transactions contemplated by the Operative Documents.
(xiv) Neither the Issuer nor any Subsidiary Guarantor is, or immediately after the sale of the Notes to be sold hereunder and the Initial Purchasers and application of the net proceeds therefrom pro- ceeds from such sale (as described in the Offering Final Memorandum under the caption "Use of Proceeds" ") will be, an "investment company" as such term is defined in the Investment Issuer Company Act of 1940, as amended.
(xvxvi) No registration under the Act of the Securities Notes is required in connection with the sale of the Securities Notes to the Initial Purchasers in the manner as contemplated by this Agreement and the Offering Final Memorandum or in connection with the initial resale of the Securities Notes by the Initial Purchasers in accordance with Section 8 hereofof 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 StatementStatement (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 accredited investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the ActAccredited Investors, (ii) the accuracy and completeness of the Initial Purchasers' representations in Section 8 hereof and those of the Issuer Company contained in the Purchase this Agreement regarding the absence of a general solicitation in connection with the sale of such Securities Notes to the Initial Purchasers and the initial resale thereof, (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof 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 purchased Securities purchases Notes in the initial resale as set forth in the Offering Final Memorandum.
(xvi) As of the date hereof, none of the Securities are of the same class (within the meaning of Rule 144A under the Act) as securities of the Issuer or any Subsidiary Guarantor that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.
(xvii) Neither the consummation of the transactions contemplated by this Agreement nor the sale, issuance, execution or delivery of the Notes nor the application of the net proceeds therefrom as described in the Final Memorandum under the caption "Use of Proceeds" will contravene violate Regulation G (12 C.F.R. Part 207)G, Regulation T (12 C.F.R. Part 220)T, Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) 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 IssuerCompany, representatives of the independent public accountants for the IssuerCompany, representatives of the Initial Purchasers and counsel for the Initial Purchasers, at which conferences the contents of the Final Memorandum and related matters were discussed, and, although it has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the statements contained in the Final Memorandum (except to the extent specified in subsection (x7(a)(x)), no facts have come to its attention which lead it to believe that the Final Memorandum, on the date thereof or on 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 statistical, accounting, reserve and accounting well data included in the Final Memorandum). In rendering the foregoing opinions, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ may (i) rely, The opinion of such counsel described in this Section shall be rendered to the extent such counsel deems proper, upon Initial Purchasers at the representations and certifications of officers request of the Issuer Company and the Subsidiaries or of public officials and (ii) rely as to matters involving the application of laws of any jurisdiction other than the federal laws of the United States of America, the laws of the State of New York and the General Corporation law of the State of Delaware, to the extent such counsel deems proper and specifies in such opinion, upon the opinion of other counsel who are reasonably satisfactory to counsel for the Initial Purchasersshall 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 (ba) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as not include prospects of the Closing Date Company and addressed to the Initial PurchasersSubsidiaries, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters taken as the Initial Purchasers may reasonably requirea whole. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and such counsel may rely upon such certificates and state that they express no opinion as to the laws of any jurisdiction other documents and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from Deloitte & Touche LLP, Independent Auditors, a comfort letter or letters dated than the date hereof federal laws of the United States and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The representations and warranties laws of the Issuer States of New York 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 Issuer shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), neither the Issuer nor any Subsidiary shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Issuer dated the Closing Date, signed on behalf of the Issuer by its Chairman of the Board, President or Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuer and the Subsidiary Guarantors contained in this Agreement were, on the date of the Purchase Agreement, and are, as of the date hereof, true and correct in all material respects, and the Issuer and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received a copy of the Registration Rights Agreement, executed by the Issuer and the Subsidiary Guarantors and (assuming the due execution and delivery by other parties thereto) such agreement shall be in full force and effect at all times from and after the Closing Date. All such documents, opinions, certificates, letters,Del
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Sources: Purchase Agreement (Safety Components Fabric Technologies Inc)