Conditions of the Obligations of the Initial Purchaser. The ------------------------------------------------------ obligations of the Initial Purchaser hereunder are subject to the following conditions: (a) Since the respective dates as of which information is given in the Preliminary Offering Memorandum and the Offering Memorandum, (1) there shall not have been a Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Preliminary Offering Memorandum and the Offering Memorandum, (2) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Preliminary Offering Memorandum and the Offering Memorandum, and (3) there shall not have been any material adverse change in the capital stock or debt of the Company and Subsidiaries taken as a whole, if in the judgment of the Initial Purchaser any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Notes by the Initial Purchaser at the purchase price. (b) Since the respective dates as of which information is given in the Preliminary Offering Memorandum and the Offering Memorandum, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would have a Material Adverse Effect. (c) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made at the Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with. (d) The Initial Purchaser shall have received an opinion, dated the Closing Date, satisfactory in form and substance to counsel for the Initial Purchaser, from ▇▇▇▇▇▇, Saleson & ▇▇▇▇▇▇ LLP, counsel to the Company, as to the matters set forth in Exhibit A-1, and from ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, as to the matters set forth in Exhibit A-2. In addition, the Initial Purchaser shall have received a reliance letter, dated on or prior to the Closing Date, from ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, with respect to the Articles of Incorporation of Stater Bros. Markets, which opinion shall be satisfactory in all respects to the Initial Purchaser. (e) The Initial Purchaser shall have received an opinion, dated the Closing Date, from Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Initial Purchaser, with respect to the validity of the Notes and such other matters as are customarily covered in such opinions, which opinion shall be satisfactory in all respects to the Initial Purchaser. (f) Concurrently with the execution and delivery of this Agreement, (i) E&Y shall have furnished to the Initial Purchaser a letter, dated the date of its delivery, addressed to the Initial Purchaser and in form and substance satisfactory to the Initial Purchaser, confirming that they are independent accountants with respect to the Company and with respect to the financial and other statistical and numerical information contained in the Preliminary Offering Memorandum and the Offering Memorandum and (ii) Deloitte and E&Y shall have each furnished to the Initial Purchaser a letter, dated the date of its delivery, addressed to the Initial Purchaser and in form and substance satisfactory to the Initial Purchaser, confirming that they are independent accountants with respect to ▇▇▇▇▇▇▇▇▇'▇, Inc. and American Stores, respectively, and with respect to the financial and other statistical and numerical information delivered to the Company by each of Deloitte and E&Y with respect to the Acquired Properties. At the Closing Date, each of the Accountants shall have furnished to the Initial Purchaser a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date. (g) Concurrently with the execution and delivery of this Agreement and at the Closing Date, there shall be furnished to the Initial Purchaser an accurate certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Initial Purchaser, to the effect that: (1) Each signer of such certificate has carefully examined the Preliminary Offering Memorandum and the Offering Memorandum and (A) as of the date of such certificate, such documents are true and correct in all material respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (B) in the case of the certificate delivered at the Closing Date, since the date hereof, no event has occurred as a result of which it is necessary to amend or supplement the Offering Memorandum in order to make the statements therein not untrue or misleading in any material respect. (2) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects. (3) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with. (h) Concurrently with the execution and delivery of this Agreement and at the Closing Date, there shall be furnished to the Initial Purchaser an accurate certificate, dated the date of its delivery, signed by the Secretary of the Company, in form and substance satisfactory to the Initial Purchaser, and attaching the Company's articles of incorporation, by-laws, resolutions, a specimen of the Notes and such other documents or records as the Initial Purchaser may reasonably request. (i) The Notes shall be qualified for sale in such states as the Initial Purchaser may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date. (j) The Notes shall have been duly authorized for quotation in PORTAL. (k) The Company shall have furnished to the Initial Purchaser such certificates, in addition to those specifically mentioned herein, as the Initial Purchaser may have reasonably requested as to the accuracy and completeness at the Closing Date of any statement in the Preliminary Offering Memorandum or the Offering Memorandum, as to the accuracy at the Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Initial Purchaser. (l) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by the Board of Governors of the Federal Reserve System or any other governmental agency as of the Closing Date that would prevent the issuance of the Notes. No injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date that would prevent the issuance of the Notes or the consummation of the Exempt Resales. The purchase of and payment for the Notes to be purchased by the Initial Purchaser shall not subject the Initial Purchaser to any penalty or, in the Initial Purchaser's reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. On the Closing Date, no action, suit or proceeding shall be pending against or, to the knowledge of the Company, affecting or threatened against, the Company or any of its Subsidiaries before any court, arbitrator or governmental body, agency or official that would interfere with or adversely affect the issuance of the Notes or in any manner draw into question the validity of this Agreement or the Notes. (m) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchaser not later than 9:00 a.m., New York City time, on the date one Business Day after the date of this Agreement or at such later date and time as the Initial Purchaser may approve in writing. (n) The Company shall have entered into the Registration Rights Agreement in form and substance acceptable to the Initial Purchaser, and the Initial Purchaser shall have received an original, duly executed by the Company, of the Registration Rights Agreement. (o) The Company and the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, confirmed as executed, thereof. The Notes shall have been issued. (p) Subsequent to the date hereof, there shall not have been any decrease in the rating of any of the Company's or any of its Subsidiaries' debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (q) The Company shall have furnished to the Initial Purchaser such further information, certificates and documents as the Initial Purchaser may reasonably request. (r) The following events shall have taken place at the time of the purchase of the Notes by the Initial Purchaser: (i) each of the conditions precedent to the Company's and Stater Bros. Markets' obligations under the Asset Purchase Agreement shall have been satisfied and not waived by the Company or Stater Bros. Markets, (ii) the Company and IBJ Whitehall Bank & Trust Company (the "11% Note Trustee"), as successor in interest to IBJ ---------------- ▇▇▇▇▇▇▇▇ Bank & Trust Company, shall have entered into the Second Supplemental Indenture in substantially the form attached as Appendix B-1 to the Offer to Purchase amending the Indenture dated as of March 8, 1994 between the Company and the 11% Note Trustee (as amended by the First Supplemental Indenture dated as of July 22, 1997 between the Company and the 11% Note Trustee) and the Initial Purchaser shall have received counterparts, confirmed as executed, thereof, (iii) the Company and US Bank National Association (the "9% Note Trustee"), as successor in interest to --------------- First Trust of New York National Association, shall have entered into the First Supplemental Indenture in substantially the form attached as Appendix B-2 to the Offer to Purchase amending the Indenture dated as of July 24, 1997 between the Company and the 9% Note Trustee and the Initial Purchaser shall have received counterparts, confirmed as executed, thereof, (iv) the Company shall have consummated the Tender Offer and (v) the Company and Bank of America shall have entered into the New Credit Facility. All opinions, certificates, letters and other documents required by this Section 6 to be delivered by the Company will be in compliance with the --------- provisions hereof only if they are reasonably satisfactory in form and substance to the Initial Purchaser. The Company will furnish to the Initial Purchaser, without charge, such conformed copies of such opinions, certificates, letters and other documents as the Initial Purchaser shall reasonably request. If any of the conditions specified in this Section 6 shall not have been --------- fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchaser and their counsel, this Agreement and all obligations of the Initial Purchaser hereunder may be canceled on the Closing Date by the Initial Purchaser. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
Appears in 1 contract
Conditions of the Obligations of the Initial Purchaser. The obligation ------------------------------------------------------ obligations of the Initial Purchaser hereunder are subject to purchase and pay for the following conditions:
(a) Since the respective dates as of which information is given Firm Securities shall be subject, in the Preliminary Offering Memorandum and the Offering Memorandum, (1) there shall not have been a Material Adverse Change, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Preliminary Offering Memorandum and the Offering Memorandum, (2) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Preliminary Offering Memorandum and the Offering Memorandum, and (3) there shall not have been any material adverse change in the capital stock or debt of the Company and Subsidiaries taken as a whole, if in the judgment sole discretion of the Initial Purchaser any such development makes it impracticable or inadvisable Purchaser, to consummate the sale and delivery of the Notes by the Initial Purchaser at the purchase price.
(b) Since the respective dates as of which information is given in the Preliminary Offering Memorandum and the Offering Memorandum, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would have a Material Adverse Effect.
(c) Each accuracy of the representations and warranties of the Company contained herein shall be true as of the date hereof and correct in all material respects at as of the Firm Closing Date, as if made at on and as of the Firm Closing Date, to the accuracy of the certifications, representations and all warranties of the Company's officers made pursuant to the provisions hereof, to the performance by the Company of its respective covenants and agreements herein contained hereunder and to be performed on the part following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement, (i) there shall not have occurred any downgrading in the rating of the Securities or of any debt securities of the Company and all conditions herein contained to be fulfilled by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or complied with by any public announcement that any such organization has under surveillance or review its rating of the Securities or of any debt securities of the Company at other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating; (ii) no order or prior decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the Closing Date registration requirements of the Securities Act, shall have been duly performedissued and no proceedings for that purpose shall have been commenced or shall be pending or, fulfilled to the knowledge of the Company, be contemplated and no stop order suspending the sale of the Securities in any jurisdiction designated by the Initial Purchaser shall have been issued and no proceedings for that purpose shall have been commenced or complied withshall be pending or, to the knowledge of the Company, shall be contemplated; (iii) the Initial Purchaser shall not have discovered or disclosed to the Company that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of fact which, in the Initial Purchaser's opinion, is material or fails to state a fact which is material or is necessary to make the statements therein, in light of the circumstances under which they are made, not misleading; or (iv) there shall not have occurred any invalidation of Rule 144A or Regulation S under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation under the Securities Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the judgment of the Initial Purchaser would materially impair its ability to purchase, hold or effect resales of the Securities as contemplated hereby.
(db) The Initial Purchaser shall have received an opinion, dated the Firm Closing Date, satisfactory in form and substance to counsel for the Initial Purchaser, from ▇▇▇▇▇▇, Saleson & ▇▇▇▇▇▇ LLP, counsel to the Company, as to the matters set forth in Exhibit A-1, and from of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to for the Company, as to the matters set forth in Exhibit A-2. In addition, the Initial Purchaser shall have received a reliance letter, dated on or prior to the Closing Date, from ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, with respect to the Articles of Incorporation of Stater Bros. Markets, which opinion shall be satisfactory in all respects to the Initial Purchaser.
(e) The Initial Purchaser shall have received an opinion, dated the Closing Date, from Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Initial Purchaser, with respect to the validity of the Notes and such other matters as are customarily covered in such opinions, which opinion shall be satisfactory in all respects to the Initial Purchaser.
(f) Concurrently with the execution and delivery of this Agreement, (i) E&Y shall have furnished to the Initial Purchaser a letter, dated the date of its delivery, addressed to the Initial Purchaser and in form and substance satisfactory to the Initial Purchaser, confirming that they are independent accountants with respect to the Company and with respect to the financial and other statistical and numerical information contained in the Preliminary Offering Memorandum and the Offering Memorandum and (ii) Deloitte and E&Y shall have each furnished to the Initial Purchaser a letter, dated the date of its delivery, addressed to the Initial Purchaser and in form and substance satisfactory to the Initial Purchaser, confirming that they are independent accountants with respect to ▇▇▇▇▇▇▇▇▇'▇, Inc. and American Stores, respectively, and with respect to the financial and other statistical and numerical information delivered to the Company by each of Deloitte and E&Y with respect to the Acquired Properties. At the Closing Date, each of the Accountants shall have furnished to the Initial Purchaser a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date.
(g) Concurrently with the execution and delivery of this Agreement and at the Closing Date, there shall be furnished to the Initial Purchaser an accurate certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Initial Purchaser, substantially to the effect that:
(i) The Company is a corporation duly organized and validly existing as a corporation in good standing under the laws of the State of Delaware. Each of HomeClub, Inc., a Nevada corporation, HomeClub, Inc. of Texas, a Delaware corporation, and Fullerton Corporation, a Delaware corporation (collectively, the "Subsidiaries"), has been duly organized and is validly existing as a corporation in good standing under the laws of its respective jurisdiction of incorporation; no subsidiary of the Company other than the Subsidiaries may be deemed to be a "significant subsidiary" as defined in Rule 1-02(w) Each signer of Regulation S-X; the Company and each of the Subsidiaries are duly qualified to transact business as foreign corporations and are in good standing under the laws of all United States jurisdictions where the ownership or leasing of their respective properties or the conduct of their respective businesses requires such certificate qualification, except where the failure to be so qualified does not amount to a material liability or disability to the Company and the Subsidiaries, taken as a whole;
(ii) The Company and each of the Subsidiaries has carefully examined full corporate power, to own or lease its properties and conduct its business as described in the Preliminary Offering Memorandum;
(iii) The authorized, issued and outstanding capital stock of the Company is as set forth in the Offering Memorandum and under the caption "Capitalization," the Common Stock conforms to the description thereof contained in the Offering Memorandum and (A) as such description is a fair summary of the date rights and privileges of a holder of such certificate, such documents are true and correct in all material respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and Common Stock;
(Biv) in the case The issued shares of capital stock of each of the certificate delivered at the Closing Date, since the date hereof, no event has occurred as a result of which it is necessary to amend or supplement the Offering Memorandum in order to make the statements therein not untrue or misleading in any material respect.
(2) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects.
(3) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with.
(h) Concurrently with the execution and delivery of this Agreement and at the Closing Date, there shall be furnished to the Initial Purchaser an accurate certificate, dated the date of its delivery, signed by the Secretary of the Company, in form and substance satisfactory to the Initial Purchaser, and attaching the Company's articles of incorporation, by-laws, resolutions, a specimen of the Notes and such other documents or records as the Initial Purchaser may reasonably request.
(i) The Notes shall be qualified for sale in such states as the Initial Purchaser may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date.
(j) The Notes shall Subsidiaries have been duly authorized for quotation in PORTAL.
(k) The Company shall have furnished to and validly issued, are fully paid and nonassessable and are owned of record by the Initial Purchaser such certificatesCompany, in addition to those specifically mentioned herein, as the Initial Purchaser may have reasonably requested as to the accuracy and completeness at the Closing Date of any statement in the Preliminary Offering Memorandum directly or the Offering Memorandum, as to the accuracy at the Closing Date through one or more of the representations and warranties Subsidiaries; the issued shares of capital stock of each of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Initial Purchaser.
(l) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by the Board of Governors of the Federal Reserve System or any other governmental agency as of the Closing Date that would prevent the issuance of the Notes. No injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date that would prevent the issuance of the Notes or the consummation of the Exempt Resales. The purchase of and payment for the Notes to be purchased by the Initial Purchaser shall not subject the Initial Purchaser to any penalty or, in the Initial Purchaser's reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. On the Closing Date, no action, suit or proceeding shall be pending against orSubsidiaries are, to the knowledge of such counsel, free and clear of any perfected security interests or any other security interests, liens, encumbrances, equities or claims; and, to the Companyknowledge of such counsel, affecting except for the Securities and as described in the Offering Memorandum under the caption "Capitalization," there are no outstanding rights, warrants or threatened against, options to acquire any capital stock of the Company or any subsidiary, other than stock options granted to officers, employees, directors, consultants and advisors under the Company's stock incentive plans;
(v) To the knowledge of its Subsidiaries before any courtsuch counsel, arbitrator or governmental bodyall of the outstanding shares of capital stock of the Company issued after July 26, agency or official that would interfere 1997 have been issued in compliance with or adversely affect all applicable federal and state securities laws and regulations of the United States, and, other than rights pursuant to the Registration Agreement, no holders of securities of the Company are entitled to have such securities registered under the Securities Act as a result of the issuance and sale of the Notes Securities hereunder or in any manner draw into question as a result of the validity Company filing the Shelf Registration Statement pursuant to the terms of this Agreement or the Notes.Registration Agreement;
(mvi) The Offering Memorandum shall have Indenture has been printed duly authorized, executed and copies distributed delivered by the Company; assuming the due authorization, execution and delivery of the Indenture by the Trustee, the Indenture constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the rights and remedies of creditors generally and to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law); the Indenture complies as to form in all material respects with the requirements of the Trust Indenture Act of 1939, as amended (the "TIA"), and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder; and it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchaser not later than 9:00 a.m., New York City time, on or in connection with the date one Business Day after the date of this Agreement or at such later date and time as the Initial Purchaser may approve in writing.
(n) The Company shall have entered into the Registration Rights Agreement in form and substance acceptable to the Initial Purchaser, and the Initial Purchaser shall have received an original, duly executed by the Company, initial resales of the Registration Rights Agreement.
(o) The Company and the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, confirmed as executed, thereof. The Notes shall have been issued.
(p) Subsequent to the date hereof, there shall not have been any decrease in the rating of any of the Company's or any of its Subsidiaries' debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(q) The Company shall have furnished to the Initial Purchaser such further information, certificates and documents as the Initial Purchaser may reasonably request.
(r) The following events shall have taken place at the time of the purchase of the Notes by the Initial Purchaser: (i) each of the conditions precedent to the Company's and Stater Bros. Markets' obligations under the Asset Purchase Agreement shall have been satisfied and not waived by the Company or Stater Bros. Markets, (ii) the Company and IBJ Whitehall Bank & Trust Company (the "11% Note Trustee"), as successor in interest to IBJ ---------------- ▇▇▇▇▇▇▇▇ Bank & Trust Company, shall have entered into the Second Supplemental Indenture in substantially the form attached as Appendix B-1 to the Offer to Purchase amending the Indenture dated as of March 8, 1994 between the Company and the 11% Note Trustee (as amended by the First Supplemental Indenture dated as of July 22, 1997 between the Company and the 11% Note Trustee) and the Initial Purchaser shall have received counterparts, confirmed as executed, thereof, (iii) the Company and US Bank National Association (the "9% Note Trustee"), as successor in interest to --------------- First Trust of New York National Association, shall have entered into the First Supplemental Indenture in substantially the form attached as Appendix B-2 to the Offer to Purchase amending the Indenture dated as of July 24, 1997 between the Company and the 9% Note Trustee and the Initial Purchaser shall have received counterparts, confirmed as executed, thereof, (iv) the Company shall have consummated the Tender Offer and (v) the Company and Bank of America shall have entered into the New Credit Facility. All opinions, certificates, letters and other documents required by this Section 6 to be Securities delivered by the Company will be in compliance with the --------- provisions hereof only if they are reasonably satisfactory in form and substance to the Initial Purchaser. The Company will furnish to the Initial Purchaser, without charge, such conformed copies of such opinions, certificates, letters and other documents as the Initial Purchaser shall reasonably request. If any of the conditions specified in this Section 6 shall not have been --------- fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchaser and their counsel, this Agreement and all obligations of the Initial Purchaser hereunder may be canceled on the Closing Date by the Company to the Initial Purchaser. Notice , in each case in the manner contemplated by this Agreement and the Offering Memorandum, to qualify the Indenture under the TIA;
(vii) The Securities have been duly authorized, executed and delivered by the Company and, assuming they have been duly authenticated by the Trustee in accordance with the terms of such cancellation shall be given to the Indenture, upon delivery of the Securities in accordance with the Indenture, the Securities will constitute legal, valid and binding obligations of the Company, enforceable against the Company in writing accordance with their terms, except as enforcement thereof may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the rights and remedies of creditors generally and to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law); and the Securities conform in all material respects to the descriptions thereof contained in the Offering Memorandum and are entitled to the benefits provided by telephone the Indenture;
(viii) The shares of Common Stock to be issued upon conversion of the Securities have been duly authorized and reserved for issuance upon such conversion of the Securities and, when they are issued and delivered upon conversion of the Securities in accordance with the terms of the Indenture, will be validly issued, fully paid and nonassessable and not subject to any preemptive rights;
(ix) The statements under the captions "Senior Bank Facility," "Description of Notes", "Description of Capital Stock" "Certain Federal Income Tax Considerations" and "Notice to Investors" in the Offering Memorandum insofar as such statements constitute a general summary of matters of United States law or telegraph confirmed of documents referred to therein are true and accurate in writing.all material respects and fairly summarize the matters referred to therein;
Appears in 1 contract
Sources: Purchase Agreement (Homebase Inc)