Conditions of the Initial Purchasers’ Obligations. The obligations of the Initial Purchaser to purchase the Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions. (a) All the representations and warranties of the Company contained in this Agreement shall be true and correct on the Closing Date, or on each Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any. (b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including without limitation the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for the purpose of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed. (c) Since the respective dates as of which information is given in the Offering Circular, other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto after the date of this Agreement), (i) there shall not have occurred any change or any development involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company or any of its subsidiaries except in the ordinary course of business, (iii) neither the Company nor any of its subsidiaries shall have incurred any liability or obligation, direct or contingent except in the ordinary course of business, and (iv) neither the Company nor any of its subsidiaries shall have sustained any loss or interference with their respective assets, businesses or properties (whether owned or leased) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, the effect of which, in case of any event described in the foregoing clause (i), (ii), (iii) or (iv), in the judgment of the Initial Purchaser, is material and adverse and makes it impracticable to market the Securities on the terms and in the manner contemplated in the Offering Circular. (d) You shall have received on the Closing Date a certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the President and the Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(dd), 9(a) and 9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or Option Closing Date, as the case may be. (e) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (subject to customary qualifications, limitations and exceptions and satisfactory to you and counsel for the Initial Purchaser), dated the Closing Date or such Option Closing Date, as the case may be, of Kirkpatrick & Lockhart LLP, counsel for the Company, to the effect tha▇: (▇) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Delaware. The Company is duly qualified to transact business and in good standing as a foreign corporation in the States of California and New York. In rendering this opinion regarding good standing, we have relied solely on good standing certificates of the Company as of a recent date issued by each of the Delaware Secretary of State, California Secretary of State and the New York Secretary of State, and in each case have made no independent investigation or verification. (ii) The Company has the requisite corporate power to enter into, deliver and perform its obligations under the Purchase Agreement and to issue and sell the Securities, other than those required under state and foreign Blue Sky laws as to which such counsel need not render an opinion. (iii) The Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture, assuming due authentication thereof by the Trustee, and delivered to and paid for by the Initial Purchaser in accordance with the terms of the Purchase Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and will be entitled to the benefits of the Indenture. (iv) The Incorporated Documents, on the respective dates they were filed, appeared on their face to comply in all material respects with the requirements as to form for reports on Form 10-K and Form 8-A, as the case may be, under the Exchange Act and the related rules and regulations in effect at the respective dates of their filing. (v) The Class A Common Stock to be issued upon conversion of the Notes have been duly authorized and reserved and, when issued upon conversion of the Notes in accordance with the terms of the Notes and the Indenture, will be validly issued, fully paid and non-assessable, and the issuance of the Class A Common Stock will not be subject to any preemptive rights arising by operation of law or under the Company's Certificate of Incorporation or Bylaws or, to such counsel's knowledge, similar rights under the documents listed in the exhibits to the Incorporated Documents. (vi) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of the Purchase Agreement and the issuance and sale of the Notes and, upon conversion thereof, the Class A Common Stock. The Purchase Agreement has been duly and validly authorized, executed and delivered by the Company and the Purchase Agreement constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. (vii) Neither the execution and delivery by the Company of, and the performance by the Company of its obligations under the Purchase Agreement, the Indenture, the Registration Rights Agreement and the Securities (including, without limitation, the issuance and sale by the Company of the Notes and, upon conversion thereof, the Class A Common Stock) will (a) give rise to a right to terminate or accelerate the due date of any payment due under, or result in the breach of any express term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company pursuant to the express terms of any indenture, mortgage, deed trust, note or other agreement or instrument to which the Company is a party or by which the Company or any of its assets or properties or businesses is bound and which is listed as an exhibit to the Incorporated Documents, (b) to such counsel's knowledge, violate any existing obligations of the Company under the express terms of any judgment, decree, or order of any court or arbitrator or governmental agency or body, which names the Company and is specifically directed to it or its properties, (c) violate any applicable statute, rule or regulation of the Federal laws of the United States of America and the laws of the States of Delaware, New York and California or (d) violate any provision of the charter or by-laws of the Company, except for such consents, waivers, approvals and authorizations which have been obtained prior to the Closing Date. (viii) No consent, approval, authorization, license, registration, or qualification or order of any federal, Delaware, New York or California court or governmental agency or regulatory body is required for the due authorization, execution, delivery or performance by the Company of its obligations under the Purchase Agreement, the Indenture, the Registration Rights Agreement or the Securities except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities (except, other than as set forth in paragraph (xv) below, we give no opinion as to registration of the Securities under the Act and the qualification of the Indenture under the Trust Indenture Act of 1939, as amended). (ix) To such counsel's knowledge, without investigation except where we have been engaged by the Company to give substantive attention to such action, suit or proceeding, there is no litigation or governmental proceeding or investigation, before any court or before or by any public body or board pending or threatened in writing against, or involving the assets, properties or businesses of, the Company which would have a Material Adverse Effect. (x) Each of the Indenture and the Registration Rights Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company, enforceable against the Company in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. (xi) The Company is not an "investment company" or an entity controlled by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended. (xii) The statements in the Offering Circular under the caption "Description of the Notes" insofar as such statement constitutes a summary of documents referred to therein fairly summarize in all material respects such documents and matters. (xiii) The capital stock of the Company conforms in all material respects to the description thereof contained in the Offering Circular under the caption "Description of Share Capital." (xiv) The statements in the Offering Circular under the caption "Certain United States Federal Income Tax Consequences," insofar as such statements constitute a summary of the United States federal tax laws referred to therein, fairly summarize the matters referred to therein in all material respects. (xv) Assuming (i) each Initial Purchaser is a "qualified institutional buyer" within the meaning of Rule 144A of the Act and (ii) the accuracy of the representations and warranties and compliance with the agreements of the Company in Section 6(ff) of the Purchase Agreement and of the Initial Purchaser in Section 7 of the Purchase Agreement, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchaser under the Purchase Agreement or in connection with the initial resale of the Securities by the Initial Purchaser in accordance with Section 7 of the Purchase Agreement and the Offering Circular to register the Securities under the Act, or to qualify the Indenture under the Trust Indenture Act of 1939, as amended, it being understood that no opinion is expressed as to any subsequent resale of any of the Notes or the Class A Common Stock issuable upon conversion of any of the Notes. Such counsel is not called upon to opine as to factual matters, and the character of determinations involved in the process is such that it is not passing upon and does not need to assume any responsibility for the accuracy, completeness or fairness of the information included in the Offering Circular. Such counsel may assume the correctness and completeness of the information included in the Offering Circular, and such counsel may make no independent investigation or verification of that information. Such counsel can advise, however, that in and on the basis of its review of the Offering Circular and its participation in its preparation, nothing has come to such counsel's attention that causes it to believe that the Offering Circular (including the Incorporated Documents), as of its date or as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel is not called upon to express an opinion with respect to, and the preceding paragraph does not address, the financial statements and related notes and schedules, and other financial, accounting, and statistical information, included in, incorporated by reference in, or omitted from the Offering Circular, or any further amendment or supplement thereto. Such counsel is also not called upon to express any opinion with respect to any mater relating to compliance with financial covenants or financial requirements. (f) The Initial Purchaser shall have received on the Closing Date and on each Option Closing Date, an opinion, dated the Closing Date, of Latham & Watkins, counsel for the Initial Purchaser, in form and subst▇▇▇▇ ▇eas▇▇▇▇▇▇ satisfactory to the Initial Purchaser. (g) The Initial Purchaser shall have received, at the time this Agreement is executed and at the Closing Date and each Option Closing Date, if any, letters dated the date hereof or the Closing Date or an Option Closing Date, as the case may be, from KPMG LLP, independent public accountants, in form and substance satisfactory to the Initial Purchaser 24 containing the information and statements of the type ordinarily included in accountants' "comfort letters" with respect to the financial statements and certain financial information contained in the Offering Circular. (h) The Notes shall have been approved by the National Association of Securities Dealers, Inc. for trading and duly listed in PORTAL. (i) The Initial Purchaser shall have received a counterpart, conformed as executed, of the Indenture which shall have been entered into by the Company and the Trustee. (j) The Company shall have executed the Registration Rights Agreement, and the Initial Purchaser shall have received an original copy thereof, duly executed by the Company. (k) The Company shall not have failed at or prior to the Closing Date or each Option Closing Date, if any, as the case may be, to perform or comply with all of the agreements contained herein and required to be performed or complied with by the Company at or prior to the Closing Date or Option Closing Date, as the case may be.
Appears in 2 contracts
Sources: Purchase Agreement (Skechers Usa Inc), Purchase Agreement (Skechers Usa Inc)
Conditions of the Initial Purchasers’ Obligations. The obligations of the Initial Purchaser to purchase the Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions.
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct on the Closing Date, or on each Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including without limitation the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "“nationally recognized statistical rating organization" ” as such term is defined for the purpose of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Circular, other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto after the date of this Agreement), (i) there shall not have occurred any change or any development involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company or any of its subsidiaries except in the ordinary course of business, (iii) neither the Company nor any of its subsidiaries shall have incurred any liability or obligation, direct or contingent except in the ordinary course of business, and (iv) neither the Company nor any of its subsidiaries shall have sustained any loss or interference with their respective assets, businesses or properties (whether owned or leased) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, the effect of which, in case of any event described in the foregoing clause (i), (ii), (iii) or (iv), in the judgment of the Initial Purchaser, is material and adverse and makes it impracticable to market the Securities on the terms and in the manner contemplated in the Offering Circular.
(d) You shall have received on the Closing Date a certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the President and the Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(dd), 9(a) and 9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or Option Closing Date, as the case may be.
(e) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (subject to customary qualifications, limitations and exceptions and satisfactory to you and counsel for the Initial Purchaser)opinion, dated the Closing Date or such Option Closing Date, as the case may be, of Kirkpatrick Shack S▇▇▇▇▇ K▇▇▇ & Lockhart LLPF▇▇▇▇▇▇▇ P.C., counsel for the Company, to the effect tha▇that:
(▇i) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Delaware. The Company is duly qualified Delaware and has corporate power and authority to transact own, lease and operate its properties and to conduct its business and in good standing as a foreign corporation described in the States of California and New York. In rendering this opinion regarding good standing, we have relied solely on good standing certificates of the Company as of a recent date issued by each of the Delaware Secretary of State, California Secretary of State and the New York Secretary of State, and in each case have made no independent investigation or verificationOffering Circular.
(ii) The Company has the requisite corporate power to enter into, deliver and perform its obligations under the Purchase Agreement and to issue and sell the Securities, other than those required under state and foreign Blue Sky laws as to which such counsel need not render an opinion.
(iii) Each subsidiary of the Company incorporated under a state of the United States has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Circular.
(iv) All of the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and nonassessable.
(v) The Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture, assuming due authentication thereof by the Trustee, and delivered to and paid for by the Initial Purchaser in accordance with the terms of the Purchase Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles, and will be entitled to the benefits of the Indenture.
(ivvi) The Incorporated Documents, on the respective dates they were filed, appeared on their face to comply complied in all material respects with the requirements as to form for reports on Form 10-K and Form 8-A, as the case may be, under the Exchange Act and the related rules and regulations in effect at the respective dates of their filing.
(vvii) The Class A shares of Common Stock to be issued upon conversion of the Notes have been duly authorized and reserved and, when issued upon conversion of the Notes in accordance with the terms of the Notes and the Indenture, will be validly issued, fully paid and non-assessable, and the issuance of the Class A Common Stock will not be subject to any preemptive rights arising by operation of law or under the Company's ’s Certificate of Incorporation or Bylaws or, to such counsel's ’s knowledge, similar rights under any other agreements of the documents listed in the exhibits to the Incorporated DocumentsCompany.
(viviii) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of the Purchase Agreement and the issuance and sale of the Notes and, upon conversion thereof, the Class A issuance of the Common Stock. The Purchase Agreement has been duly and validly authorized, executed and delivered by the Company and the Purchase Agreement constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principlesprinciples and except to the extent that rights to indemnity or contribution under the Purchase Agreement may be limited by Federal or state securities laws or the public policy underlying such laws.
(viiix) Neither the execution and delivery by the Company of, and nor the performance by the Company of its obligations under the Purchase Agreement, the Indenture, the Registration Rights Agreement and the Securities (including, without limitation, the issuance and sale by the Company of the Notes and, upon conversion thereof, the Class A Common Stock) will (a) give rise to a right to terminate or accelerate the due date of any payment due under, or result in the breach of any express term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company pursuant to the express terms of any indenture, mortgage, deed trust, note or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or any of the assets or properties or businesses is of the Company or any of its subsidiaries are bound and which is listed as an exhibit to the Incorporated Documents, (b) to such counsel's ’s knowledge, violate any existing obligations of the Company or any of its subsidiaries under the express terms of any judgment, decree, or order of any court or arbitrator or governmental agency or body, which names the Company or any of its subsidiaries and is specifically directed to it them or its their properties, (c) violate any applicable statute, rule or regulation of the Federal laws of the United States of America and the laws of the States of Delaware, Delaware and New York and California (excluding any gaming laws, rules or regulations) or (d) violate any provision of the charter or by-laws of the CompanyCompany or any of its subsidiaries, except for such consents, waivers, approvals and authorizations which have been obtained prior to the Closing Date.
(viiix) No consent, approval, authorization, license, registration, or qualification or order of any federal, Delaware, Delaware or New York or California court or governmental agency or regulatory body (excluding any gaming regulatory authorities) is required for the due authorization, execution, delivery or performance by the Company of its obligations under the Purchase Agreement, the Indenture, the Registration Rights Agreement or the Securities except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities (except, other than as set forth in paragraph (xvxiv) below, we give no opinion as to registration of the Securities under the Act and the qualification of the Indenture under the Trust Indenture Act of 1939, as amended).
(ixxi) To such counsel's ’s knowledge, without investigation except where we have been engaged by the Company to give substantive attention to such action, suit or proceeding, there is no litigation or governmental proceeding or investigation, before any court or before or by any public body or board pending or threatened in writing against, or involving the assets, properties or businesses of, the Company or any of its subsidiaries which would have a Material Adverse Effect.
(xxii) Each of the Indenture and the Registration Rights Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company, enforceable against the Company in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' ’ rights generally and by general equitable principles.
(xixiii) The Company is not an "“investment company" ” or an entity controlled by an "“investment company" ” as such terms are defined in the Investment Company Act of 1940, as amended.
(xiixiv) The statements in the Offering Circular under the caption "“Description of the Notes" ” insofar as such statement constitutes statements constitute a summary of documents referred to therein fairly summarize in all material respects such documents and matters.
(xiiixv) The capital stock of the Company conforms in all material respects to the description thereof contained in the Offering Circular under the caption "“Description of Share Capital."”
(xiv) The statements in the Offering Circular under the caption "Certain United States Federal Income Tax Consequences," insofar as such statements constitute a summary of the United States federal tax laws referred to therein, fairly summarize the matters referred to therein in all material respects.
(xvxvi) Assuming (i) each Initial Purchaser is a "“qualified institutional buyer" ” within the meaning of Rule 144A of the Act and (ii) the accuracy of the representations and warranties and compliance with the agreements of the Company in Section 6(ff) of the Purchase Agreement and of the Initial Purchaser in Section 7 of the Purchase Agreement, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchaser under the Purchase Agreement or in connection with the initial resale of the Securities by the Initial Purchaser in accordance with Section 7 of the Purchase Agreement and the Offering Circular to register the Securities under the Act, or to qualify the Indenture under the Trust Indenture Act of 1939, as amended, it being understood that no opinion is expressed as to any subsequent resale of any of the Notes or the Class A Common Stock issuable upon conversion of any of the Notes. Such counsel is not called upon to opine as to factual matters, and the character of determinations involved in the process is such that it is not passing upon and does not need to assume any responsibility for the accuracy, completeness or fairness of the information included in the Offering Circular. Such counsel may assume the correctness and completeness of the information included in the Offering Circular, and such counsel may make no independent investigation or verification of that information. Such counsel can advise, however, that in and on the basis of its review of the Offering Circular and its participation in its preparation, nothing has come to such counsel's ’s attention that causes it to believe that the Offering Circular (including the Incorporated Documents)Circular, as of its date or as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel is not called upon to express an opinion with respect to, and the preceding paragraph does not address, the financial statements and related notes and schedules, and other financial, accounting, and statistical information, included in, incorporated by reference in, or omitted from the Offering Circular, or any further amendment or supplement thereto. Such counsel is also not called upon to express any opinion with respect to any mater relating to compliance with financial covenants or financial requirements.
(f) The Initial Purchaser You shall have received on the Closing Date and on each Option Closing Date, an opinion, dated the Closing Date, of Latham & Watkins, counsel for the Initial Purchaser, in form and subst▇▇▇▇ ▇eas▇▇▇▇▇▇ satisfactory to the Initial Purchaser.
(g) The Initial Purchaser shall have received, at the time this Agreement is executed and at the Closing Date and each Option Closing Date, if any, letters dated the date hereof or the Closing Date or an Option Closing Dateopinion of K▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as the case may be, from KPMG LLP, independent public accountants, in form Vice President and substance satisfactory General Counsel to the Initial Purchaser 24 containing the information and statements of the type ordinarily included in accountants' "comfort letters" with respect Company, to the financial statements and certain financial information contained in the Offering Circular.
(h) The Notes shall have been approved by the National Association of Securities Dealers, Inc. for trading and duly listed in PORTAL.effect that:
(i) The Initial Purchaser Company and WMS Gaming Inc., L▇▇▇-▇▇▇▇▇ Inc. and W▇▇▇▇▇▇▇ Electronics Games, Inc. are duly qualified to transact business and are in good standing as a foreign corporation in the State of Illinois.
(ii) Neither the execution and delivery by the Company of, nor the performance by the Company of its obligations under the Purchase Agreement, the Indenture, the Registration Rights Agreement and the Securities (including, without limitation, the issuance and sale by the Company of the Notes and, upon conversion thereof, the Common Stock) will violate any applicable statute, rule or regulation of the laws of the State of Illinois (excluding any gaming laws, rules or regulations).
(iii) No consent, approval, authorization, license, registration or qualification or order of any Illinois court or governmental agency or regulatory body (excluding any gaming regulatory authorities) is required for the due authorization, execution, delivery or performance by the Company of its obligations under the Purchase Agreement, the Indenture, the Registration Rights Agreement or the Securities.
(iv) To such counsel’s knowledge, there is no litigation or governmental proceeding or investigation, before any court or before or by any public body or board pending or threatened in writing against or involving the assets, properties or businesses of, the Company or any of its subsidiaries which would have a Material Adverse Effect.
(v) All of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim.
(g) You shall have received a counterpart, conformed as executed, of the Indenture which shall have been entered into by the Company and the Trustee.
(j) The Company shall have executed the Registration Rights Agreement, and the Initial Purchaser shall have received an original copy thereof, duly executed by the Company.
(k) The Company shall not have failed at or prior to on the Closing Date or and each Option Closing Date, if any, as an opinion of H▇▇▇▇ & H▇▇▇▇▇▇, tax counsel for the case may beCompany, to perform or comply with all the effect that the statements in the Offering Circular under the caption “Certain United States Federal Income Tax Consequences,” insofar as such statements constitute a summary of the agreements contained herein and required United States federal tax laws referred to be performed or complied with by therein, fairly summarize the Company at or prior matters referred to the Closing Date or Option Closing Date, as the case may betherein in all material respects.
(h) You shall h
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligations of the Initial Purchaser to purchase the Firm Notes Series A Debentures under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions.:
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct on the Closing Date, or on each Option Closing Date, if any, Date with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including including, without limitation limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for the purpose purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes Debentures than that on which the Notes Debentures were marketed.
(c) Since the respective dates as of which information is given in the Offering Circular, Memorandum other than as set forth in the Offering Circular Memorandum (exclusive of any amendments or supplements thereto after subsequent to the date of this Agreement), (i) there shall not have occurred any change or any development involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company or any of its subsidiaries except in the ordinary course of business, and (iii) neither the Company nor any of its subsidiaries shall have incurred any liability or obligation, direct or contingent except in the ordinary course of business, and (iv) neither the Company nor any of its subsidiaries shall have sustained any loss or interference with their respective assets, businesses or properties (whether owned or leased) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decreecontingent, the effect of which, in any such case of any event described in the foregoing clause (i9(c)(i), (ii), (iii9(c)(ii) or (iv9(c)(iii), in the judgment of the Initial Purchaseryour judgment, is material and adverse and and, in your judgment, makes it impracticable to market the Securities Series A Debentures on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) You shall have received on the Closing Date a certificate, certificate dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the President and the Chief Financial Officer or a Vice President of the Company, confirming the matters set forth in Sections 6(dd6(y), 9(a) and 9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or Option Closing Date, as the case may be.
(e) You shall have received on the Closing Date and each Option Closing Date, if any, an opinion (subject to customary qualifications, limitations and exceptions and satisfactory to you and counsel for the Initial Purchaser), dated the Closing Date or such Option Closing Date, as the case may beof Skadden, of Kirkpatrick Arps, Slate, ▇▇▇▇▇▇▇ & Lockhart ▇▇▇▇, LLP, counsel for the Company, to the effect tha▇that:
(▇i) The the Company has been duly incorporated and incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the State of Delaware. The Company is duly qualified corporate power and corporate authority to transact carry on its business and to own, lease and operate its properties, in good standing both cases as a foreign corporation described in the States of California and New York. In rendering this opinion regarding good standing, we have relied solely on good standing certificates of the Company as of a recent date issued by each of the Delaware Secretary of State, California Secretary of State and the New York Secretary of State, and in each case have made no independent investigation or verification.Offering Memorandum;
(ii) The all the outstanding shares of capital stock of the Company has the requisite corporate power have been duly authorized and validly issued and are fully paid, non-assessable and not subject to enter into, deliver and perform its obligations under the Purchase Agreement and to issue and sell the Securities, other than those required under state and foreign Blue Sky laws as to which such counsel need not render an opinion.any preemptive or similar rights;
(iii) The Notes the issuance and sale of the Series A Debentures have been duly authorized by requisite corporate action on the Company andpart of the Company, and when executed and authenticated in accordance with the provisions terms of the Indenture, assuming due authentication thereof by the Trustee, Indenture and delivered to and paid for by the Initial Purchaser Purchasers in accordance with the terms of the Purchase this Agreement, will be valid and binding obligations of the Company, Company enforceable against the Company in accordance with their terms, except as such enforceability (a) to the extent enforcement thereof may be limited by applicable (x) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and or other similar laws affecting the enforcement of now or hereafter in effect relating to creditors' rights generally and by (y) general equitable principles, principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and will be entitled to (b) the benefits waiver contained in Section 4.06 of the Indenture.Indenture may be deemed unenforceable;
(iv) The Incorporated Documents, on the respective dates they were filed, appeared on their face to comply in all material respects with the requirements as to form for reports on Form 10-K and Form 8-A, as the case may be, under the Exchange Act and the related rules and regulations in effect at the respective dates of their filing.
(v) The Class A Common Stock to be issued upon conversion of the Notes have been duly authorized and reserved and, when issued upon conversion of the Notes in accordance with the terms of the Notes and the Indenture, will be validly issued, fully paid and non-assessable, and the issuance of the Class A Common Stock will not be subject to any preemptive rights arising by operation of law or under the Company's Certificate of Incorporation or Bylaws or, to such counsel's knowledge, similar rights under the documents listed in the exhibits to the Incorporated Documents.
(vi) All necessary corporate action Indenture has been duly and validly taken by the Company to authorize the execution, delivery and performance of the Purchase Agreement and the issuance and sale of the Notes and, upon conversion thereof, the Class A Common Stock. The Purchase Agreement has been duly and validly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery by the Purchase Trustee, is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (a) to the extent enforcement thereof may be limited by (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (y) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) and (b) the waiver contained in Section 4.06 of the Indenture may be deemed unenforceable;
(v) this Agreement constitutes has been duly authorized, executed and delivered by the legalCompany;
(vi) the Registration Rights Agreement has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery by the Initial Purchasers, is a valid and binding obligation of the Company enforceable against the Company in accordance with its terms except as such enforceability (a) to the extent enforcement thereof may be limited by applicable (x) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and or other similar laws affecting the enforcement of now or hereafter in effect relating to creditors' rights generally and (y) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); (b) any rights to indemnity or contribution thereunder may be limited by general equitable principles.federal and state securities laws and public policy considerations; and (c) such counsel need express no opinion with respect to Section 5 of the Registration Rights Agreement;
(vii) Neither the Series B Debentures have been duly authorized by requisite corporate action on the part of the Company;
(viii) the statements under the captions "Summary--Acquisition Transactions," "Acquisition Transactions," "Description of Holdings Capital Stock," "Description of Debentures," "Description of Other Indebtedness," and "Plan of Distribution" in the Offering Memorandum, insofar as they purport to constitute a summary of the provisions of the documents described therein, fairly summarize the provisions of such documents purported to be described. The statements under the caption "Certain United States Federal Income Tax Considerations" fairly summarize the matters addressed therein in all material respects;
(ix) the execution and delivery of this Agreement and the other Operative Documents by the Company of, and the Company's performance by the Company of its obligations under each of the Purchase AgreementOperative Documents to which it is a party in accordance with its terms do not (i) require any consent, approval, authorization of, or filing, recordation or registration with, any court or governmental body or agency (except such as may be required under the Indenturesecurities or Blue Sky laws of the various states or that has been obtained prior to the Closing Date), (ii) conflict with the Registration Rights charter or by-laws of the Company or constitute a violation of or a default under the agreements listed in a schedule attached to such opinion, (iii) contravene any law of the State of New York, which in the experience of such counsel, is normally applicable to transactions of the type contemplated by this Agreement and the Securities (including, without limitation, other Operative Documents and are not the issuance and sale by the Company subject of the Notes and, upon conversion thereof, the Class A Common Stock) will (a) give rise a specific opinion herein referring expressly to a right to terminate particular law or accelerate laws or (iv) cause the due date creation of any payment due under, or result in the breach of any express term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon Lien (other than the Liens contemplated by the Operative Documents) under any properties or assets of the Company pursuant to the express terms of any indenture, mortgage, deed trust, note or other agreement or instrument listed in a schedule to such opinion to which the Company or any of its subsidiaries is a party or by which the Company or any of its assets subsidiaries or properties or businesses their respective property is bound and which is listed bound. Such counsel need express no opinion, however, as an exhibit to the Incorporated Documents, (b) to such counsel's knowledge, violate any existing obligations of the Company under the express terms of any judgment, decree, or order of any court or arbitrator or governmental agency or body, which names the Company and is specifically directed to it or its properties, (c) violate any applicable statute, rule or regulation of the Federal laws of the United States of America and the laws of the States of Delaware, New York and California or (d) violate any provision of the charter or by-laws of the Company, except for such consents, waivers, approvals and authorizations which have been obtained prior to the Closing Date.
(viii) No consent, approval, authorization, license, registration, or qualification or order of any federal, Delaware, New York or California court or governmental agency or regulatory body is required for the due authorization, whether execution, delivery or performance by the Company of its obligations under the Purchase Agreement, the Indenture, the Registration Rights Agreement or the Securities except such as may be required by the securities or Blue Sky laws each of the various states Operative Documents in connection accordance with the offer and sale its terms will constitute a violation of or a default under any covenant, restriction or provision with respect to financial ratios or tests or any aspect of the Securities financial condition or results of operations of the Company;
(exceptx) to such counsel's knowledge, other than as set forth in paragraph (xv) below, we give no opinion as to registration of the Securities under the Act and the qualification of the Indenture under the Trust Indenture Act of 1939, as amended).
(ix) To such counsel's knowledge, without investigation except where we have been engaged by the Company to give substantive attention to such action, suit or proceedingOffering Memorandum, there is are no litigation legal or governmental proceeding or investigation, before any court or before or by any public body or board proceedings in the United States pending or threatened in writing against, or involving the assets, properties or businesses of, to which the Company or any of its subsidiaries is a party or to which would have any of their respective property is subject, which might result, singly or in the aggregate, in a Material Adverse Effect.
(x) Each of the Indenture and the Registration Rights Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company, enforceable against the Company in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.;
(xi) The the Company is not an "investment company" or an entity controlled by and, after giving effect to the offering and sale of the Series A Debentures and the application of the net proceeds thereof as described in the Offering Memorandum, will not be required to be registered as, and is not registered as, an "investment company" as such terms are term is defined in the Investment Company Act of 1940, as amended.;
(xii) The statements in to the Offering Circular best of such counsel's knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the caption "Description Act with respect to any securities of the Notes" insofar as Company or to require the Company to include such statement constitutes a summary of documents referred securities with the Notes registered pursuant to therein fairly summarize in all material respects such documents and matters.any Registration Statement;
(xiii) The capital stock the Indenture is in such form that would not preclude qualification under the TIA and the rules and regulations of the Company conforms in all material respects Commission applicable to the description thereof contained in the Offering Circular under the caption "Description of Share Capital."
(xiv) The statements in the Offering Circular under the caption "Certain United States Federal Income Tax Consequences," insofar as such statements constitute a summary of the United States federal tax laws referred to therein, fairly summarize the matters referred to therein in all material respects.
(xv) an indenture which is qualified thereunder. Assuming (i) each Initial Purchaser is a "qualified institutional buyer" within the meaning of Rule 144A of the Act and (ii) the accuracy of the representations and warranties and compliance with the agreements of the Company set forth in Section 6(ffSections 6(u), (aa), (bb), (dd), (ee), (ff), (gg) and (hh) of the Purchase this Agreement and of the Initial Purchaser Purchasers in Section 7 of this Agreement, and (ii) the Purchase due performance by the Company and the due performance by the Initial Purchasers of the covenants and agreements set forth in this Agreement, it is not necessary in connection with the offer, sale and delivery of the Securities Series A Debentures to the Initial Purchaser under Purchasers in the Purchase manner contemplated by this Agreement or in connection with the initial resale of the Securities by the Initial Purchaser in accordance with Section 7 of the Purchase Agreement and the Offering Circular to register the Securities under the Act, or Exempt Resales to qualify the Indenture under the Trust Indenture TIA; and
(xiv) assuming (i) the accuracy of the representations and warranties of the Company set forth in Sections 6(u), (aa), (bb), (dd), (ee), (ff), (gg) and (hh) of this Agreement and of the Initial Purchasers in Section 7 of this Agreement, (ii) the due performance by the Company and the due performance by the Initial Purchasers of the covenants and agreements set forth in this Agreement, (iii) compliance by the Initial Purchasers with the offering and transfer procedures and restrictions described in the Offering Memorandum, (iv) the accuracy of the representations and warranties made in accordance with this Agreement and the Offering Memorandum by purchasers to whom the Initial Purchasers initially resell Series A Debentures and (v) that purchasers to whom the Initial Purchasers initially resell Series A Debentures receive a copy of the Offering Memorandum prior to such sale, the offer, sale and delivery of the Series A Debentures to the Initial Purchasers in the manner contemplated by this Agreement and the Offering Memorandum and the initial resale of the Series A Debentures by the Initial Purchasers in the manner contemplated in the Offering Memorandum and this Agreement, do not require registration under the Securities Act of 19391933, as amended, it being understood that such counsel need express no opinion is expressed as to any subsequent resale of any Series A Debenture. In addition, such counsel shall state that it has participated in conferences with officers and other representatives of the Notes or the Class A Common Stock issuable upon conversion of any Company, representatives of the Notes. Such counsel is not called upon to opine as to factual mattersindependent accountants of the Company, and the character Initial Purchasers and the Initial Purchasers' counsel at which the contents of determinations involved in the process is Offering Memorandum and related matters were discussed and, although such that it is counsel need not passing upon pass upon, and does shall not need to assume any responsibility for for, the accuracy, completeness or fairness of the information included statements contained in the Offering Circular. Such counsel may assume the correctness Memorandum and completeness of the information included in the Offering Circular, and such counsel may need make no independent investigation check or verification of that information. Such counsel can advisethereof, however, that in and on the basis of its review of the Offering Circular and its participation in its preparationforegoing, nothing has no facts have come to such counsel's attention that causes it have led such counsel to believe that the Offering Circular (including the Incorporated Documents)Memorandum, as of its date or and as of the date hereofClosing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such , except that such counsel is not called upon to need express an no opinion or belief with respect to, and the preceding paragraph does not address, to the financial statements and related notes and schedulesstatements, and other financial, accounting, financial and statistical information, data included in, incorporated by reference in, therein or omitted from excluded therefrom. The opinion of counsel for the Offering Circular, or any further amendment or supplement thereto. Such counsel is also not called upon Company described in Section 9(e) above shall be rendered to express any opinion with respect to any mater relating to compliance with financial covenants or financial requirementsyou at the request of the Company and shall so state therein.
(f) The Initial Purchaser shall have received on the Closing Date and on each Option Closing Date, an opinion, dated the Closing Date, of Latham ▇▇▇▇▇▇ & Watkins▇▇▇▇▇▇▇, counsel for the Initial Purchaser, in form and subst▇▇▇▇ ▇eas▇▇▇▇▇▇ substance reasonably satisfactory to the Initial Purchaser.
(g) The Initial Purchaser shall have received, at the time this Agreement is executed and at the Closing Date and each Option Closing Date, if any, letters dated the date hereof or the Closing Date or an Option Closing Date, as the case may be, from KPMG LLP, independent public accountants, in form and substance satisfactory to the Initial Purchaser 24 from Ernst & Young LLP, independent public accountants, containing the information and statements of the type ordinarily included in accountants' "comfort letters" to the Initial Purchaser with respect to the financial statements and certain financial information contained in the Offering CircularMemorandum.
(h) The Notes Series A Debentures shall have been approved by the National Association of Securities Dealers, Inc. NASD for trading and duly listed in PORTAL.
(i) The Company and the Trustee shall have executed the Indenture and the Initial Purchaser shall have received a counterpartan original copy thereof, conformed as executed, of the Indenture which shall have been entered into duly executed by the Company and the Trustee.
(j) The Company shall have executed the Registration Rights Agreement, Agreement and the Initial Purchaser shall have received an original copy thereof, duly executed by the Company.
(k) On the Closing Date, the certificate of merger relating to the Merger shall have been filed with the Secretary of State of the State of Delaware, and Merger Sub shall have merged with and into the Company, with the Company as the surviving corporation.
(l) The New Credit Agreement shall have been executed by the parties thereto and, on the Closing Date, the closing under the New Credit Agreement (including, without limitation, the borrowing of all term loans thereunder) shall have been consummated, and the Initial Purchasers shall have received counterparts, conformed as executed, of the New Credit Agreement and any and all other ancillary documents related thereto.
(m) The Notes Offering shall have been consummated.
(n) The Tender Offer and Solicitation shall have been consummated and the Supplemental Indenture shall be in full force and effect.
(o) The Initial Purchaser shall have received on the Closing Date an opinion addressed to it, dated the Closing Date, of Valuation Research, with respect to the solvency of the Company.
(p) The Company shall not have failed at on or prior to the Closing Date or each Option Closing Date, if any, as the case may be, to perform or comply with all any of the agreements herein contained herein and required to be performed or complied with by the Company at it on or prior to the Closing Date or Option Closing Date, as the case may be.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligations of the Initial Purchaser to purchase the Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions.:
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the Closing Date, or on each Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including without limitation the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for the purpose of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering CircularMemorandum, other than as set forth in the Offering Circular Memorandum (exclusive of any amendments or supplements thereto after the date of this Agreement), (i) there shall not have occurred any change or any development involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its subsidiaries, taken as a whole, (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company or any of its subsidiaries except in the ordinary course of business, (iii) neither the Company nor any of its subsidiaries shall have incurred any liability or obligation, direct or contingent except in the ordinary course of business, and (iv) neither the Company nor any of its subsidiaries shall have sustained any loss or interference with their respective assets, businesses or properties (whether owned or leased) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, the effect of which, in case of any event described in the foregoing clause (i), (ii), (iii) or (iv), in the reasonable judgment of the Initial Purchaser, is material and adverse and makes it impracticable to market the Securities Notes on the terms and in the manner contemplated in the Offering CircularMemorandum.
(d) You The Initial Purchaser shall have received on the Closing Date a certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the President Chief Executive Officer and the Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(dd), 9(a) 6 and 9(b) 9 and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or Option Closing Date, as the case may be.
(e) You The Initial Purchaser shall have received on the Closing Date and each Option Closing Date, if any, an opinion (subject to customary qualifications, limitations and exceptions and satisfactory to you and counsel for the Initial Purchaser), dated the Closing Date or such Option Closing Date, as the case may be, of Kirkpatrick & Lockhart LLP▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Inc., South African counsel for the Company, with respect to the effect tha▇:
(▇) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Delaware. The Company is duly qualified to transact business and in good standing as a foreign corporation in the States of California and New York. In rendering this opinion regarding good standing, we have relied solely on good standing certificates of the Company as of a recent date issued by each of the Delaware Secretary of State, California Secretary of State and the New York Secretary of Statematters set out at Schedule B, and in each case have made no independent investigation or verification.
(ii) The Company has Fulbright & ▇▇▇▇▇▇▇▇ LLP with respect to the requisite corporate power to enter intomatters set out at Schedule C, deliver and perform its obligations under the Purchase Agreement and to issue and sell the Securities, other than those required under state and foreign Blue Sky laws as to which such U.S. counsel need not render an opinion.
(iii) The Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture, assuming due authentication thereof by the Trustee, and delivered to and paid for by the Initial Purchaser in accordance with the terms of the Purchase Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and will be entitled to the benefits of the Indenture.
(iv) The Incorporated Documents, on the respective dates they were filed, appeared on their face to comply in all material respects with the requirements as to form for reports on Form 10-K and Form 8-A, as the case may be, under the Exchange Act and the related rules and regulations in effect at the respective dates of their filing.
(v) The Class A Common Stock to be issued upon conversion of the Notes have been duly authorized and reserved and, when issued upon conversion of the Notes in accordance with the terms of the Notes and the Indenture, will be validly issued, fully paid and non-assessable, and the issuance of the Class A Common Stock will not be subject to any preemptive rights arising by operation of law or under the Company's Certificate of Incorporation or Bylaws or, to such counsel's knowledge, similar rights under the documents listed in the exhibits to the Incorporated Documents.
(vi) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of the Purchase Agreement and the issuance and sale of the Notes and, upon conversion thereof, the Class A Common Stock. The Purchase Agreement has been duly and validly authorized, executed and delivered by the Company and the Purchase Agreement constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
(vii) Neither the execution and delivery by the Company of, and the performance by the Company of its obligations under the Purchase Agreement, the Indenture, the Registration Rights Agreement and the Securities (including, without limitation, the issuance and sale by the Company of the Notes and, upon conversion thereof, the Class A Common Stock) will (a) give rise to a right to terminate or accelerate the due date of any payment due under, or result in the breach of any express term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company pursuant to the express terms of any indenture, mortgage, deed trust, note or other agreement or instrument to which the Company is a party or by which the Company or any of its assets or properties or businesses is bound and which is listed as an exhibit to the Incorporated Documents, (b) to such counsel's knowledge, violate any existing obligations of the Company under the express terms of any judgment, decree, or order of any court or arbitrator or governmental agency or body, which names the Company and is specifically directed to it or its properties, (c) violate any applicable statute, rule or regulation of the Federal laws of the United States of America and the laws of the States of Delaware, New York and California or (d) violate any provision of the charter or by-laws of the Company, except for such consents, waivers, approvals and authorizations which have been obtained prior to the Closing Date.
(viii) No consent, approval, authorization, license, registration, or qualification or order of any federal, Delaware, New York or California court or governmental agency or regulatory body is required for the due authorization, execution, delivery or performance by the Company of its obligations under the Purchase Agreement, the Indenture, the Registration Rights Agreement or the Securities except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities (except, other than as set forth in paragraph (xv) below, we give no opinion as to registration of the Securities under the Act and the qualification of the Indenture under the Trust Indenture Act of 1939, as amended).
(ix) To such counsel's knowledge, without investigation except where we have been engaged by the Company to give substantive attention to such action, suit or proceeding, there is no litigation or governmental proceeding or investigation, before any court or before or by any public body or board pending or threatened in writing against, or involving the assets, properties or businesses of, the Company which would have a Material Adverse Effect.
(x) Each of the Indenture and the Registration Rights Agreement has been duly authorized, executed and delivered by, and is a valid and binding agreement of, the Company, enforceable against the Company in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
(xi) The Company is not an "investment company" or an entity controlled by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended.
(xii) The statements in the Offering Circular under the caption "Description of the Notes" insofar as such statement constitutes a summary of documents referred to therein fairly summarize in all material respects such documents and matters.
(xiii) The capital stock of the Company conforms in all material respects to the description thereof contained in the Offering Circular under the caption "Description of Share Capital."
(xiv) The statements in the Offering Circular under the caption "Certain United States Federal Income Tax Consequences," insofar as such statements constitute a summary of the United States federal tax laws referred to therein, fairly summarize the matters referred to therein in all material respects.
(xv) Assuming (i) each Initial Purchaser is a "qualified institutional buyer" within the meaning of Rule 144A of the Act and (ii) the accuracy of the representations and warranties and compliance with the agreements of the Company in Section 6(ff) of the Purchase Agreement and of the Initial Purchaser in Section 7 of the Purchase Agreement, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchaser under the Purchase Agreement or in connection with the initial resale of the Securities by the Initial Purchaser in accordance with Section 7 of the Purchase Agreement and the Offering Circular to register the Securities under the Act, or to qualify the Indenture under the Trust Indenture Act of 1939, as amended, it being understood that no opinion is expressed as to any subsequent resale of any of the Notes or the Class A Common Stock issuable upon conversion of any of the Notes. Such counsel is are not called upon to opine as to factual matters, and the character of determinations involved in the process is such that it is not passing upon and does not need to assume any responsibility for the accuracy, completeness or fairness of the information included in the Offering Circular. Such counsel may assume the correctness and completeness of the information included in the Offering Circular, and such counsel may make no independent investigation or verification of that informationMemorandum. Such counsel can advise, however, that in and on the basis of its review of the Offering Circular Memorandum and its participation in its preparation, nothing has come to such counsel's attention that causes it to believe that the Offering Circular (including the Incorporated Documents)Memorandum, as of its date or as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel is are not called upon to express an opinion with respect to, and the preceding paragraph does not address, the financial statements and related notes and schedules, and other financial, accounting, numerical and statistical accounting information, included in, incorporated by reference in, or omitted from the Offering CircularMemorandum, or any further amendment or supplement thereto. Such counsel is are also not called upon to express any opinion with respect to any mater relating to compliance with financial covenants or financial requirements.
(f) The Initial Purchaser shall have received on the Closing Date and on each Option Closing Date, an opinion, dated the Closing Date, of Latham Blake, ▇▇▇▇▇▇▇ & Watkins▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchaser, in form and subst▇▇▇▇ ▇eas▇▇▇▇▇▇ substance reasonably satisfactory to the Initial Purchaser.
(g) The Initial Purchaser shall have received, at the time this Agreement is executed and at the Closing Date and each Option Closing Date, if any, letters dated the date hereof or the Closing Date or an Option Closing Date, as the case may be, from KPMG Deloitte & Touche LLP, independent public accountants, in form and substance satisfactory to the Initial Purchaser 24 containing the information and statements of the type ordinarily included in accountants' "comfort letters" with respect to the financial statements and certain financial information contained in the Offering CircularMemorandum.
(h) The Initial Purchaser shall have received, at the Closing Date and each Option Closing Date, the Initial Purchaser's Commission payable by the Company in respect of the Firm Notes or Additional Notes, as the case may be, pursuant to Section 2(c).
(i) The Notes shall have been approved by the National Association of Securities Dealers, Inc. for trading and duly listed in PORTAL.
(ij) The Initial Purchaser shall have received a counterpart, conformed as executed, of the Indenture which shall have been entered into by the Company and the Trustee.
(jk) The Company shall have executed the Registration Rights Agreement, and the Initial Purchaser shall have received an original copy thereof, duly executed by the CompanyCompany and the Registration Rights Agreement shall be in full force and effect.
(kl) The Company shall not have failed at or prior to the Closing Date or each Option Closing Date, if any, as the case may be, to perform or comply with all of the agreements contained herein and required to be performed or complied with by the Company at or prior to the Closing Date or Option Closing Date, as the case may be.
(m) The Initial Purchaser shall have received an opinion that each of the Material Subsidiaries (i) has been duly incorporated and is validly existing; and (ii) has the capacity to carry on its business and own its property as described in the Offering Memorandum.
(n) The Initial Purchaser shall have received a legal opinion that the Company and each of its Material Subsidiaries, as the case may be, hold good title to the properties described in the Offering Circular as the Blyvoor Section, Buffels Section, Harties Section, Crown Section, West Wits Section and the Tolukuma Mine in the manner described therein, free and clear of any and all mortgages, charges, security interests, encumbrances or defects except as otherwise disclosed in the Offering Circular.
(o) The Initial Purchaser shall have received executed Lock-Up Agreements in the form set forth in Exhibit B by each of the individuals listed on Schedule D.
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Conditions of the Initial Purchasers’ Obligations. The obligations of the Initial Purchaser to purchase the Firm Notes under this Agreement on the Closing Date and the Additional Notes, if any, on any Option Closing Date are subject to the satisfaction of each of the following conditions.
(a) All the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects (except that any representation or warranty already qualified as to materiality shall be true and correct in all respects) on the Closing Date, or on each Option Closing Date, if any, with the same force and effect as if made on and as of the Closing Date or on each Option Closing Date, if any.
(b) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including without limitation the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for the purpose of Rule 436(g)(2436(g)(i) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the Offering Circular, other than as set forth in the Offering Circular (exclusive of any amendments or supplements thereto after the date of this Agreement), (i) there shall not have occurred any change or any development involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company and its subsidiariesSubsidiaries, taken as a whole, (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company or any of its subsidiaries except in the ordinary course of businessSubsidiaries, (iii) neither the Company nor any of its subsidiaries Subsidiaries shall have incurred any liability or obligation, direct or contingent except in the ordinary course of businesscontingent, and (iv) neither the Company nor any of its subsidiaries Subsidiaries shall have sustained any loss or interference with their respective assets, businesses or properties (whether owned or leased) from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, the effect of whichdecree that, in case of any event described in the foregoing clause (i), (ii), (iii) or (iv), would have a Material Adverse Effect the effect of which, in the judgment of the Initial Purchaseryour judgment, is material and adverse and and, in your judgment, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Offering Circular.
(d) You shall have received on the Closing Date a certificate, dated the Closing Date, and on an Option Closing Date, if any, dated such Option Closing Date, signed by the President and the Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(dd6(aa), 9(a) and 9(b) and stating that the Company has complied with all the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied on or prior to the Closing Date or relevant Option Closing Date, as the case may be.
(e) You shall have received on the Closing Date and on each Option Closing Date, if any, an opinion (subject to customary qualifications, limitations and exceptions and satisfactory to you and counsel for the Initial Purchaseryour counsel), addressed to you and dated the such Closing Date or such Option Closing Date, as the case may be, of Kirkpatrick & Lockhart LLPStibbe, counsel for the Company, to the effect tha▇that:
(▇i) The Company has been duly incorporated organized and is validly existing as a corporation public limited liability company under the laws of the State of Delaware. The Company is duly qualified to transact business and in good standing as a foreign corporation in the States of California and New York. In rendering this opinion regarding good standing, we have relied solely on good standing certificates Kingdom of the Netherlands. To such counsel's knowledge, other than the Subsidiaries listed on Schedule A to this Agreement and NuTool, Inc., the Company as of does not control, directly or indirectly, or hold greater than a recent date issued by each of the Delaware Secretary of State5% interest in, California Secretary of State and the New York Secretary of State, and in each case have made no independent investigation any other corporation or verificationother business organization.
(ii) The Company has the all requisite corporate power and authority to own, lease and license its assets and properties and conduct its business as described in the Offering Circular and to enter into, deliver and perform its obligations under the Purchase this Agreement and to issue and sell the Securities, other than those required under state and foreign Blue Sky laws as to which such counsel need not render an opinion.
(iii) The Notes authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Offering Circular.
(iv) The Securities have been duly authorized by the Company and, and when executed and authenticated in accordance with the provisions of the Indenture, assuming due authentication thereof by the Trustee, Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement (and assuming the Purchase AgreementSecurities and the Indenture were governed by Netherlands law), will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles, and will be entitled to the benefits of the Indenture.
(iv) The Incorporated Documents, on the respective dates they were filed, appeared on their face to comply in all material respects with the requirements as to form for reports on Form 10-K and Form 8-A, as the case may be, under the Exchange Act and the related rules and regulations in effect at the respective dates of their filing.
(v) The Class A Common Stock Shares to be issued upon conversion of the Notes have been duly authorized and reserved and, when issued upon conversion of the Notes in accordance with the terms of the Notes and the Indenture, will be validly issued, fully paid and non-assessable, and . Neither the issuance Notes nor the Common Shares issuable upon conversion of the Class A Common Stock Notes will not be subject to issued in violation of any preemptive rights, rights arising by operation of law first refusal or under other similar rights to subscribe for or to purchase or acquire any securities of the Company, or any restriction upon the voting or transfer of any securities of the Company, pursuant to the Company's Certificate of Incorporation charter or Bylaws by-laws or, to such counsel's knowledge, similar rights under any agreement or other instrument to or by which the documents listed in the exhibits to the Incorporated DocumentsCompany or any of its Subsidiaries is a party or is bound.
(vi) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of the Purchase this Agreement and the issuance and sale of the Notes and, upon conversion thereof, the Class A Common Stock. The Purchase Agreement has been duly and validly authorized, executed and delivered by the Company and the Purchase Agreement constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principlesSecurities.
(vii) Neither The execution, delivery and performance of this Agreement and the execution and delivery other Operative Documents by the Company, compliance by the Company with all provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not (i) require any consent, approval, authorization or other order of, and or qualification with, any court or governmental body or agency of the performance by Netherlands other than the filing of the Offering Circular with the Securities Board of the Netherlands (Stichting Toezicht Effectenverkeer), (ii) conflict with or constitute a breach of any of the terms or provisions of, or a default under, the Articles of Association of the Company of its obligations under the Purchase Agreementor, the Indentureto such counsel's knowledge, the Registration Rights Agreement and the Securities (includingany indenture, without limitationloan agreement, the issuance and sale by mortgage, lease or other agreement or instrument that is material to the Company and its Subsidiaries, taken as a whole, to which to the Company or its Subsidiaries is a party or by which the Company or its Subsidiaries or their respective property is bound, (iii) violate or conflict with any applicable law or any rule or regulation or, to such counsel's knowledge, any judgment, order or decree of any court or any governmental body or agency of the Notes andNetherlands, upon conversion thereof(iv) to such counsel's knowledge, the Class A Common Stock) will (a) give rise to a right to terminate or accelerate the due date of any payment due under, or result in the breach imposition or creation of any express term or provision of, or constitute a default (or any event which with notice the obligation to create or lapse of time, or both, would constitute impose) a default) Lien under, or require consent or waiver under, or result in the execution or imposition of any lien, charge, claim, security interest or encumbrance upon any properties or assets of the Company pursuant to the express terms of any indenture, mortgage, deed trust, note or other agreement or instrument to which the Company or its Subsidiaries is a party or by which the Company or its Subsidiaries or their respective property is bound, or (v) to such counsel's knowledge, result in the termination, suspension or revocation of any Authorization of the Company or its Subsidiaries or result in any other impairment of the rights of the holder of any such Authorization.
(viii) The Company is not (i) in violation of its Articles of Association, (ii) to such counsel's knowledge, in default in the performance of any obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its Subsidiaries, taken as a whole, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its assets Subsidiaries or properties or businesses their property is bound and which is listed as an exhibit to the Incorporated Documents, or (biii) to such counsel's knowledge, violate any existing obligations of the Company under the express terms in violation of any franchise, license, permit, judgment, decree, or order of any court or arbitrator or governmental agency or bodyorder, which names the Company and is specifically directed to it or its properties, (c) violate any applicable statute, rule or regulation of the Federal laws of the United States of America and the laws of the States of Delaware, New York and California or (d) violate any provision of the charter or by-laws of the Company, except for such consents, waivers, approvals and authorizations which have been obtained prior to the Closing Date.
(viii) No consent, approval, authorization, license, registration, or qualification or order of any federal, Delaware, New York or California court or governmental body or agency or regulatory body is required for the due authorization, execution, delivery or performance by the Company of its obligations under the Purchase Agreement, the Indenture, the Registration Rights Agreement or the Securities except such as may be required by the securities or Blue Sky laws of the various states in connection with Netherlands, where the offer and sale consequences of the Securities (except, other than as set forth in paragraph (xv) below, we give no opinion as to registration of the Securities under the Act and the qualification of the Indenture under the Trust Indenture Act of 1939, as amended)such violation would have a Material Adverse Effect.
(ix) To such counsel's knowledge, without investigation except where we have been engaged by the Company to give substantive attention to such action, suit or proceeding, there is no litigation or governmental or other proceeding or investigation, before any Netherlands court or before or by any Netherlands public body or board pending or threatened in writing against, or involving the assets, properties or businesses of, the Company which would have a Material Adverse Effect.
(x) Each To such counsel's knowledge, the Company owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations necessary to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted, except where the failure to so own, possess or obtain would not have a Material Adverse Effect; and to such counsel's knowledge, neither the Company nor any of the its Netherlands Subsidiaries has received any notice of proceedings relating to revocation or modification of any such licenses, permits, certificates, consents, orders approvals or authorizations.
(xi) The Indenture and the Registration Rights Agreement has been duly authorized, . When executed and delivered byby the Company (and assuming the Indenture were governed by Netherlands law), and is a the Indenture will be the valid and binding agreement of, the Company, enforceable against the Company in accordance with its terms except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
(xi) The Company is not an "investment company" or an entity controlled by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amendedterms.
(xii) The statements in the Offering Circular under the caption "Description of the Notes" insofar as such statement constitutes a summary of documents referred to therein fairly summarize in all material respects such documents and matters.
(xiii) The capital stock of the Company conforms in all material respects to the description thereof contained in the Offering Circular under the caption captions "Description of Share Capital.," "
Risk Factors - Risks Relating to Our Business - Our anti-takeover provisions and our settlement agreement with Applied Materials may prevent a beneficial change of control" (xiv) The statements to the extent relating to anti-takeover provisions), "Risk Factors - Risks Relating to This Offering - You may have difficulty protecting your rights as an investor and in the Offering Circular under the caption enforcing civil liabilities because we are a Netherlands limited liability company" and "Certain United States Federal Income Tax Consequences,Enforceability of Civil Liabilities" insofar as such statements constitute a summary summaries of the United States federal tax laws legal matters, documents or proceedings referred to therein, fairly summarize the matters referred to therein in all material respects.
(xvxiii) Assuming (i) each Initial Purchaser is a "qualified institutional buyer" within Under exchange control regulations currently in effect, there are no authorizations or consents required from any governmental or regulatory body in the meaning of Rule 144A Netherlands to provide nonresidents of the Act and Netherlands the right to freely repatriate to non-Netherlands currency all amounts received with respect to the Securities that were purchased with non-Netherlands currency, whether as payment of principal or interest, as a dividend, as a liquidating distribution or as proceeds from the sale of such Securities, subject to applicable tax withholding.
(iixiv) To the accuracy of the representations and warranties and compliance with the agreements of extent that Netherlands law is applicable, the Company has, as provided in Section 6(ff) 12 of the Purchase Agreement and of the Initial Purchaser in Section 7 of the Purchase this Agreement, duly and irrevocably appointed Corporation Service Company as its agent to receive service of process in any action against it is not necessary in connection with any federal or state court sitting in the offer, sale and delivery county of the Securities to the Initial Purchaser under the Purchase Agreement New York arising out of or in connection with the initial resale offering contemplated by this Agreement.
(xv) Under the laws of the Securities Netherlands, the submission by the Initial Purchaser Company to the jurisdiction of any federal or state court sitting in the county of New York and the designation of the law of the State of New York to apply to the Operating Documents is binding upon the Company.
(xvi) There is no rule under Netherlands law that would prevent the validity and enforceability of the lock-up agreements executed by the persons listed in Section 5(m) of this Agreement, assuming that each of such lock-up agreements has been duly executed by the relevant person and duly and validly delivered by such persons, and that each such lock-up agreement shall then constitute the legal, valid and binding obligation of each such person enforceable against each such person in accordance with Section 7 its terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of the Purchase Agreement creditors' rights generally and the Offering Circular to register the Securities under the Actby general equitable principles. In addition, or to qualify the Indenture under the Trust Indenture Act of 1939, as amended, such counsel shall state that although it being understood that no opinion is expressed as to any subsequent resale of any of the Notes or the Class A Common Stock issuable upon conversion of any of the Notes. Such counsel is has not called upon to opine as to factual mattersverified, and the character of determinations involved in the process is such that it is not passing upon and does not need to assume any responsibility for for, the accuracy, completeness or fairness of the information included statements contained in the Offering Circular. Such Circular (other than with regard to the opinions set forth in paragraph (xii) above), such counsel may assume the correctness has participated in conferences with officers and completeness other representatives of the information included in Company, representatives of the Offering Circularindependent public accountants for the Company and representatives of the Initial Purchaser and counsel for the Initial Purchaser, and such counsel may make no independent investigation or verification of that information. Such counsel can advise, however, that in and on at which the basis of its review contents of the Offering Circular and its participation related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in its preparationthe Offering Circular (other than with regard to the opinions set forth in paragraph (xii) above), nothing has and have not made any independent check or verification thereof, during the course of such participation, no facts have come to such counsel's attention that causes it would cause such counsel to believe that the Offering Circular (including the Incorporated Documents)Circular, as of its date or as of the date hereofClosing Date (or relevant Option Closing Date, as the case may be), contained or contains an untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such misleading (it being understood that such counsel is need not called upon to express an opinion comment with respect to, and the preceding paragraph does not address, to the financial statements and related notes and schedulesstatements, schedules and other financial, accounting, financial and statistical information, data included in, or incorporated by reference in, or omitted from in the Offering Circular, or any further amendment or supplement thereto. Such counsel is also not called upon to express any opinion with respect to any mater relating to compliance with financial covenants or financial requirements).
(f) The Initial Purchaser You shall have received on the Closing Date and on each Option Closing Date, an opinion, dated the Closing Date, of Latham & Watkins, counsel for the Initial Purchaser, in form and subst▇▇▇▇ ▇eas▇▇▇▇▇▇ satisfactory to the Initial Purchaser.
(g) The Initial Purchaser shall have received, at the time this Agreement is executed and at the Closing Date and each Option Closing Date, if any, letters an opinion (subject to customary qualifications, limitations and exceptions and satisfactory to you and your counsel), addressed to you and dated the date hereof or the such Closing Date or an such Option Closing Date, as the case may be, from KPMG of Quarles & Brady Streich Lang LLP, independent public accountantsUnited States counsel for the ▇▇▇pan▇, in form and substance satisfactory to the Initial Purchaser 24 containing the information and statements of the type ordinarily included in accountants' "comfort letters" with respect to the financial statements and certain financial information contained in the Offering Circular.
(h) The Notes shall have been approved by the National Association of Securities Dealers, Inc. for trading and duly listed in PORTAL.▇▇ ▇▇▇ ▇▇▇e▇▇ ▇hat:
(i) The Initial Purchaser shall have received a counterpartAssuming that the law of the State of Arizona were to govern, conformed as executedthe Securities, when executed and authenticated in accordance with the provisions of the Indenture which shall have been entered into and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits of the Indenture.
(ii) The execution, delivery and performance of this Agreement and the other Operative Documents by the Company, compliance by the Company with all provisions hereof and thereof and the Trustee.
consummation of the transactions contemplated hereby and thereby will not (ji) The Company shall have executed require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency of the Registration Rights AgreementUnited States, and (ii) to such counsel's knowledge, conflict with or constitute a breach of any of the Initial Purchaser shall have received an original copy thereofterms or provisions of, duly executed or a default under, any indenture, loan agreement, mortgage, lease or other agreement or instrument that has been deemed a material contract under the standard of Section 4 to the instructions as to the exhibits for Form 20-F promulgated by the Company.
(k) The Company shall not have failed at or prior to the Closing Date or each Option Closing Date, if any, as the case may be, to perform or comply with all of the agreements contained herein Commission and required to be performed or complied with by the Company at or prior to the Closing Date or Option Closing Date, as the case may be.has according
Appears in 1 contract